Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380

Robert Vinson, Plaintiff and Respondent, v. Paramount Pictures Corporation et al., Defendants and Appellants.

B237965

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR

2013 Cal. App. Unpub. LEXIS 3380

May 14, 2013, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC446030, Michelle R. Rosenblatt, Judge.

DISPOSITION: Reversed and remanded.

CORE TERMS: rope, inflatable, unambiguous, climbing, nonsuit, rock-climbing, fitness, economic damages, new trial, injury suffered, sponsored, noneconomic damages, climber’s, climb, private agreement, ordinary negligence, recreational activities, expressing, misconduct, membership, participating, partial, harness, signing, pulley, top, risk of injury, claims of negligence, injuries resulting, preclude liability

COUNSEL: Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller; Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens and Terrence L. Cranert for Defendants and Appellants.

Law Offices of I. Allan Oberman, I. Allan Oberman; and Debra Fischl for Plaintiff and Respondent.

JUDGES: EPSTEIN, P. J.; MANELLA, J., SUZUKAWA, J. concurred.

OPINION BY: EPSTEIN, P. J.

OPINION

Appellants Paramount Pictures Corporation, Viacom, Inc. and Elite Special Events, Inc. (collectively appellants) appeal from a money judgment in favor of respondent Robert Vinson. The jury awarded Vinson past economic damages sustained after a fall from an inflatable rock-climbing wall at an event hosted and sponsored by appellants, finding appellants’ negligence caused the harm to Vinson. They contend: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; [*2] and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.

We conclude the release signed by Vinson was valid as to the rock-climbing activity underlying his claims. Vinson expressly consented to waive any claims based on injuries incurred while participating in any activities sponsored by appellants, precluding liability. We reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Vinson was a member of the Paramount “Studio Club” (the Club). To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” (the Release). The Release provided, in relevant part: “By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue [*3] on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.” In January 2009, Vinson signed the application and initialed the Release provision.

In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths and performances. One attraction was an inflatable rock-climbing wall. The wall was approximately 30 feet tall with inflated protrusions which serve as hand and foot holds for potential climbers. When climbing on this type of wall, a climber is strapped into a harness connected to a rope. The rope then passes through a pulley at the top of the wall and loops back down to an operator of the wall. That operator uses a device called a grigri to control the amount of rope let out. The parties presented conflicting accounts of what occurred during Vinson’s participation in this activity.

Vinson claimed he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached [*4] the top of the wall, he asked the two operators attending the wall what to do next. Vinson said the operators told him to remove his hands from the wall, grab the rope, and lean back. Shortly thereafter, all of the tension in the rope gave way and Vinson went into a free fall. He stated that he hit an inflatable apron at the base of the wall, bounced at least three feet into the air, then came crashing down on the concrete pavement surrounding the wall.

Appellants presented testimony that the operator holding the rope for Vinson gave him instructions on how to put on the harness and how to climb the wall. Once Vinson reached the top, he began to jump up and down off the wall and push back and forth, in response to encouragement from his friends below. Testimony indicated that the operator holding the rope told Vinson to stop and eventually began lowering him down the wall. At some point between 50 and 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped and landed on the inflatable apron and, according to both of the operators, never hit the concrete.

Based on testimony from the operators themselves and an expert in rock-wall [*5] climbing, the operators should have had full control of the rope at all times, regardless of what the climber was doing. The amount of rope released from such a mechanism is solely controlled by the operators and thus the pace of a climber’s descent is determined by the operator releasing rope through the pulley system. The operators testified that neither of them had seen the manual that accompanied the inflatable wall and provided detailed instructions on how to operate it. The operator who controlled Vinson’s climb received only one hour of training. An expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert testified that, based on the evidence, the operator in this case failed to understand the mechanics of the pulley system and was negligent in his operation during Vinson’s climb. Vinson produced evidence that he suffered physical and psychological injuries as a result of the fall, leading to lost wages and lost earnings.

Vinson brought suit against appellants for past and future economic damages and past and future noneconomic damages. At the close of Vinson’s evidence, appellants [*6] moved for nonsuit on two grounds. First, they argued the Release, signed by Vinson, constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Second, they argued the primary assumption of the risk doctrine should apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. They argued that general negligence principles did not apply, and because there was no evidence that the operators increased the risk of injury beyond that inherent in the activity, a nonsuit should be granted. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit.

The jury returned a verdict for Vinson, finding appellants were negligent and that their negligence caused Vinson’s injuries. It awarded Vinson $70,620 in past economic damages, but nothing for future economic damages and nothing for the noneconomic damages [*7] he sought. Vinson moved for new trial limited to the issue of general damages or, in the alternative, for an addittur in an amount to be determined by the court. The court concluded there was no proper reason for the jury to award Vinson over $70,000 in special damages yet find that he did not incur any pain and suffering as a result of the incident. It reasoned that even if the jury found Vinson was malingering, and thereby inflating his claim for general damages, awarding no noneconomic damages was improper. The court granted Vinson’s motion for a partial new trial subject to appellants’ consent to an additur in the amount of $80,000. Appellants declined to accept the additur, and this appeal followed.

DISCUSSION

Appellants contend the trial court erred in denying their motion for nonsuit on two grounds. They argue the court should have found Vinson’s signature on the Release precluded liability. They also argue that even if the Release did not bar the claim, voluntarily participating in the climbing activity involved an assumption of the risk that negated appellants’ duty to eliminate the risks inherent in that activity.

Persons generally have a duty to use due care to avoid injuring [*8] others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, a private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)¹ Implied assumption of the risk, on the other hand, involves exemption from liability based on the nature of a specific activity and the relationship of the parties to that activity, rather than on an express agreement. (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)

1 Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.) But, private agreements [*9] made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)

“To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490, declined to follow by Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 9.) “‘It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.) [*10] “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)

The trial court denied appellants’ motion for nonsuit based on the signing of the Release, concluding it did not apply to Vinson’s claim because the “release [did] not ensure that [Vinson] knew the risks and hazards of this activity when he was signing a waiver of liability for negligence” on appellants’ part. The court reasoned that the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties.”

Appellants argue the Release was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue. They argue it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved, in order for the Release to be effective. We agree.

Here, the plain language of the Release is explicit as to its breadth. According to its terms, the signer [*11] was releasing “any and all claims” against appellants based on “any and all injuries” resulting from “any accident” arising out of his or her “participation in any of the events or activities sponsored by the Club.” Vinson argues the specific activity involved here, inflatable rock wall climbing, was not comprehended by the release. Similarly, the trial court relied on the theory that the Release failed to identify the specific risk involved or that the risks were unknown to Vinson when he signed it. However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Furthermore, “[t]he inclusion of the term ‘negligence’ is simply [*12] not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.)

In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court dealt with a release in the fitness center context. The court found the defendant health club unremarkably foresaw potential injuries to members of its club and rationally required them to sign a release and assumption of risk as a condition of membership. (Ibid.) The release broadly covered injuries “‘arising out of or connected with the use of the fitness center.”‘ (Id. at p. 69.) The court found the release covered the injury suffered by the plaintiff as it occurred while using the fitness center.

In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1358, the court discussed a release signed by the plaintiff upon joining the defendant fitness center. The release stated the signer was waiving liability for injuries suffered while on the defendant’s premises, “‘whether using exercise equipment or not.’” (Ibid.) The court found the purpose of the release was to protect the defendant from future liability in consideration for granting the plaintiff access to defendant’s premises. [*13] (Ibid.) The plaintiff was then injured while adjusting a television on defendant’s premises. (Id. at p. 1355.) The court rejected the plaintiff’s argument that the release should not apply to an activity which was secondary to his membership in the fitness center, especially when the risk of a falling television was not known to him at the time the release was signed. (Id. at pp. 1357-1359.) The court concluded that the broad, unambiguous language of the release served to preclude liability on the part of the defendant for any injuries suffered by plaintiff on defendant’s premises. (Id. at p. 1358.)

Here, Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. Similar to the releases discussed in the cases above, we find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved [*14] appellants of liability for ordinary negligence during his participation in this particular activity.

Because we have concluded Vinson expressly released appellants from liability, thereby serving as a bar to his claim of negligence, appellants’ contentions regarding primary assumption of the risk are moot.

Appellants also contend the jury’s decision to award substantial economic damages, but no noneconomic damages, was clearly a compromise verdict. They argue the trial court’s granting of a partial new trial solely on the issue of damages was an abuse of discretion, and a full new trial should have been ordered. Again, we need not address this issue as we have concluded the negligence claim was precluded by Vinson’s signing of the Release.

DISPOSITION

The judgment is reversed, and the case remanded with instructions. Appellants to have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.

Opinion No. 4995

COURT OF APPEALS OF SOUTH CAROLINA

399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

December 6, 2011, Heard

June 27, 2012, Filed

SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)

PRIOR HISTORY: [***1]

Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.

DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.

Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.

JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.

OPINION BY: FEW

OPINION

[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. ¹

1 The judgment in favor of Larry’s parents is not affected by this appeal.

I. Facts

On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.

Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. ² Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.

2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).

After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. ³ Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.

3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.

Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got[] tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.

Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.

II. Procedural History

All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; ⁴ and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.

4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.

Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, ⁵ $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.

5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.

[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.

III. Alpine Towers’ Appeal

A. Directed Verdict and JNOV–Actual Damages

[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).

In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.

1. Strict Liability

In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. ⁶

6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”

The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.

Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.

2. Negligent Design

[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.’” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.

Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.

Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.

[**897] 3. Negligent Training

In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”

Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:

In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. ⁷

7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”

This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.

We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.

4. Intervening Causation

[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:

The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.

By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).

Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”

Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.

B. Directed Verdict and JNOV–Punitive Damages

Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.

[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).

Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.

As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.

As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.

Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.

[*197] C. Apportionment of Fort Mill’s Fault

Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). ⁸ However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).

8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.

IV. Larry’s Appeal

Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.

[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).

The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:

Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].

Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.’” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.’” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).

This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.

Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.

The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.

[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).

To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.

The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .

Forelady: Ask me that again.

. . .

The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?

Forelady: It’s cumulative.

The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?

Forelady: It’s cumulative.

The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. ⁹

9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.

[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, ¹⁰ which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.

10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.

This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:

[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. ¹¹

Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.

11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.

V. Conclusion

For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.

[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS, J., concurs.

CONCUR BY: THOMAS

CONCUR

THOMAS, J., concurring in a separate opinion.

THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.

[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.

Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.

I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. ¹² Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, ¹³ he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.

12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.

13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.

[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages ¹⁴ and $1,110,000 in punitive damages.

14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.

WordPress Tags: Plaintiff,ACCT,cost,defendant,million,Judgment,insurance,bankruptcy,Keeter,Alpine,Towers,International,LEXIS,Lawrence,Ronald,Travis,Rebecca,Ashley,Sexton,Claims,Defenses,verdict,action,Larry,settlement,Fort,Mill,dollar,South,Carolina,Court,injury,student,disaster,Worse,industry,association,Tower,amusement,park,Carowinds,owner,Seller,degree,agreement,device,instructor,climber,sale,product,equipment,instructions,warnings,system,jury,parents,negligence,Summary,arguments,decision,theory,experts,Gerald,George,Trango,Jaws,absence,error,GriGri,accidents,students,Negligent,failure,manufacturer,climbers,Proof,knowledge,purchaser,manuals,curriculums,syllabus,adults,Second,supervisor,addition,employee,testimony,Lackey,member,feet,Moreover,errors,competency,participants,manner,statements,employees,committee,Challenge,Courses,Technology,Despite,skills,Once,Causation,argument,thunderstorm,actor,fact,Risk,Management,Here,consequences,defendants,event,injuries,Remember,headquarters,resorts,Patrols,area,locations,Instructors,Instructional,conjunction,attorney,information,accident,Belay,humans,coup,instruction,proficiency,Supreme,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Human,Rock,Ropes,Course,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Petzl,Mills,three,paraplegic,belayer,belayers,third,whether,tortfeasor

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4^th Cir 1992)

James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.

No. 92-1060

United States Court of Appeals for the Fourth Circuit

1992 U.S. App. LEXIS 15094

May 5, 1992, Argued

June 29, 1992, Decided

Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.

Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)

Disposition: Affirmed

Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.

Howard J. Schulman, Baltimore, Maryland, for Appellee.

Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Opinion by: Per Curiam

Opinion

Opinion

Per Curiam:

James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.

Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.

I

Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).

Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:

1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).

2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).

3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).

Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.

Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.

The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.

Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.

The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.

First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.

Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.

The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.

Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.

Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.

II

Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.

[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).

Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.

For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).

In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.

In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. ^* The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.

There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.

Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).

Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).

III

With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED

WordPress Tags: Sanders,Laurel,Highlands,River,Tours,LEXIS,James,Plaintiff,Appellant,Maryland,Defendants,Appellees,States,Court,Appeals,Fourth,Circuit,June,Notice,Rules,citation,opinions,Subsequent,History,Table,Prior,Appeal,District,Frederic,Smalkin,Judge,Disposition,Counsel,Richard,Evan,Jordan,Washington,Howard,Schulman,Appellee,Judges,Ervin,Chief,Hamilton,Eastern,North,Carolina,designation,Opinion,Curiam,judgment,injuries,denial,reconsideration,dangers,causation,injury,Although,theory,failure,landowners,product,context,decision,warnings,corporation,customers,rivers,rapids,Pennsylvania,area,Youghiogheny,Western,industry,categories,experts,Armstead,Whitewater,America,October,Exhibit,Joint,Appendix,brochure,effort,danger,Experience,Cheat,Upper,purposes,participants,waiver,card,signature,information,acceptance,swimmer,health,Highland,Directors,Officers,Stockholders,Employees,Helpers,instructions,helmets,life,preservers,yards,companions,knee,employee,room,abrasion,surgery,Four,infection,efforts,basis,testimony,statements,descriptions,negligence,Order,relief,Here,affidavit,recovery,landowner,addition,purpose,carrier,discretion,affidavits,jury,assertions,citizen,Alabama,action,Appellate,Charbonnages,France,Smith,defendant,Eisel,Educ,Montgomery,counselor,parents,student,suicide,person,transmission,disease,example,owner,horse,rider,customer,Quinn,Robins,Idaho,airline,turbulence,Brittain,Piedmont,Aviation,American,Airlines,Supp,factors,tort,policy,connection,patrons,error,proposition,Federal,Deposit,Insur,Corp,Jones,Nolan,Dillon,cards,Saenz,Voyages,Rptr,Dist,Given,Under,Nesbitt,Bethesda,Country,Club,Gibson,Beaver,arguments,himself,staph

Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720

Carl Ravey v. Rockworks, LLC, Et Al.

12-1305

Court of Appeal of Louisiana, Third Circuit

12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720

April 10, 2013, Decided

NOTICE:

THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

PRIOR HISTORY: [*1]

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C-20113689. HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE.

DISPOSITION: AFFIRMED.

COUNSEL: Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Rockworks, LLC, Colony Speciality Ins. Co.

Kilyun Luke Williamson, Williamson, Fontenot & Campbel, Baton Rouge, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Carl Ravey.

JUDGES: Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

OPINION BY: JOHN D. SAUNDERS

OPINION

SAUNDERS, J.

This case involves a suit by the patron of a rock climbing facility against the facility for negligence in training and supervision. The trial court granted the facility’s motion for summary judgment and dismissed the suit. We affirm.

FACTS AND PROCEDURAL HISTORY:

On August 14, 2010, Plaintiff-Appellant, Carl Ravey (“Ravey”), as a mentor for youth, was visiting Lafayette, Louisiana with the Civil Air Patrol, which operates out of Ascension Parish, Louisiana. The Civil Air Patrol is comprised of children aged twelve to eighteen. The group was in Lafayette for a training exercise at the University of Louisiana at Lafayette. While in Lafayette, the group of sixteen young men and [*2] women, with their adult chaperones, and with a Civil Air Patrol Unit from Hammond, Louisiana, visited Rok Haus to use the climbing facilities.

Upon their arrival, the participants paid their individual fees and initiated a group safety training exercise with Adelle Anderson (“Anderson”), one of the employees at Rok Haus that evening. The attendees received training and instruction on climbing safety and the safe use of climbing equipment in a fifteen to twenty minute safety meeting known as a “belay check.” Every climber at Rok Haus is harnessed and equipped with a safety rope, which is attended to and operated by a “belayer,” who controls the safety rope through a locking device known as a Grigri. The belayer’s job is to look after the climber’s ropes and to operate the Grigri. In order to release the rope to allow a climber to descend, the belayer must pull a lever on the side of the Grigri.

Following safety training, Ravey began to climb the rock wall while tethered to his belayer, David Kelley (“Kelley”), a fourteen-year-old member of the Civil Air Patrol. The group climbed for approximately forty-five minutes when Ravey, [Pg 2] upon reaching the top of the wall, a distance of approximately [*3] twenty to twenty-four feet from the ground, fell almost all the way to the ground. He was partially suspended, but fell far enough such that his leg impacted the floor and was injured. As Ravey fell, the safety rope fed freely through the locking device indicating that Kelley was holding the lever in the open position. When Kelley released the lever, the Grigri locking device engaged and the rope arrested Ravey’s fall, but Ravey’s leg had already made contact with the floor and was injured.

Ravey brought this action alleging negligence on the part of Rok Haus and its affiliates/insurer. Rok Haus filed a motion for summary judgment alleging no duty was breached on the part of Rok Haus and that there was no genuine issue of material fact so judgment was proper as a matter of law. The trial court granted the motion for summary judgment and dismissed Ravey’s claims. Ravey appeals.

ASSIGNMENTS OF ERROR:

Ravey sets forth the following assignments of error:

1. The trial court erred in granting the motion for summary judgment as there is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.

2. The trial court erred in granting the motion [*4] for summary judgment as there are genuine issues of material fact regarding the adequacy of training received by the Ravey party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.

LAW AND ANALYSIS:

Standard of Review

[HN1] When an appellate court reviews a district court’s judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is [Pg 3] appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

[HN2] A motion for summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons could only reach one conclusion, then there is no need for trial on that issue and summary judgment is appropriate.” [*5] Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). A fact is “material” when “its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751.

1. Heightened Duty

The first issue raised on appeal deals with the issue of negligence on the part of Rok Haus. [HN3] In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) duty, (2) breach, (3) cause-in-fact, (4) scope of duty/scope of risk, and (5) actual damages. Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270.

[HN4] “Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law–statutory, jurisprudential, or arising from general principles of fault–to support his claim.” Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). The duty owed to an invitee “is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, [*6] and correction thereof or a warning to the invitee of the danger.” Alexander v. Gen. Acc. Fire & [Pg 4] Life Assur. Corp., 98 So.2d 730, 732 (La.App. 1 Cir. 1957). “[M]embers of [gyms] are owed a duty of reasonable care to protect them from injury on the premises.” Thomas v. Sport City, Inc., 31,994 (La.App. 2 Cir. 06/16/99), 738 So.2d 1153, 1157. “This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.” Id.

Ravey argues that rock climbing at Rok Haus is an unreasonably dangerous activity such that it requires a heightened duty. In support of this argument, he cites Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1042 (La.), where the court found that a greater degree of care must be exercised by a school if a student uses an inherently dangerous object or engages in an activity where it is reasonably foreseeable that an accident or injury may occur.

In Prier, the court stated that [HN5] a teacher could not be “liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, [*7] and did not do so.” Prier, 351 So.2d at 268. “It is also essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.” Id. It further explained:

Again, the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children. The school board, through the principals and/or the teachers, are expected to take reasonable precautions and care to avoid injury to the students.

Id at 269 (quoting Whitfield v. East Baton Rouge Parish Sch. Bd., 43 So.2d 47 (La.App. 1 Cir. 1949)).

[HN6] As with school boards, gyms are not the insurers of the lives or safety of the patrons of the club. See Gatti v. World Wide Health Studios of Lake Charles, Inc., [Pg 5] 323 So.2d 819 (La.App. 2 Cir. 1975). A gym cannot be expected to foresee or guard against all dangers incident to the rashness of its patrons. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of Rok Haus, Ravey must show both a failure to provide reasonable training [*8] and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.

As a gym, Rok Haus owed a duty of reasonable care under the circumstances. The equipment was visually inspected prior to usage and was functioning properly after the incident.¹ Ravey and Kelley were given proper instructions on how to climb the wall and use the equipment properly. Ravey and Kelley were also observed using the equipment to lower climbers properly before they were allowed to climb and belay by themselves. During the time the group was climbing prior to the accident, two Rok Haus employees observed the group to ensure they were using the gym’s equipment properly. Ravey made five or six successful climbs on the wall of the gym prior to the accident.

1 The particular Grigri (hand brake) in question remained in use for approximately one year after the incident.

It cannot be said that Rok Haus acted unreasonably in training its patrons on the proper use of the climbing equipment and in assisting the patrons with the equipment. Rok Haus employees provided the usual training to Ravey and his belayer. The employees observed them [*9] using the equipment properly before allowing them to climb on their own. The Rok Haus employees also continued to supervise the climbers after training. There is no evidence that the measures taken by Rok Haus’ employees to protect its patrons were inadequate under the circumstances and that a lack of supervision/training caused the accident. There [Pg 6] has not been a showing of both a failure to provide proper supervision and training along with a causal link to the incident in question. As such, there is no evidence that Rok Haus breached its duty of as a gym owner. Because the first element of negligence has not been sustained, the other four will not be addressed.

2. Adequacy of Training & Supervision

The final issue raised on appeal is whether there is a genuine issue of material fact as to the adequacy of training and supervision provided by Rok Haus. The existence of evidence as to inadequacy of training and supervision is essential to plaintiff’s cause of action. Without evidence as to said inadequacy, summary judgment was proper. See La.Code Civ.P. art. 966.

Rok Haus mandates a “belay check” safety session before any patrons climb the rock walls. During the belay check, the [*10] patrons are assisted with donning their harnesses and fastening themselves to the safety ropes. When a patron is climbing the wall, he is attached to a rope that runs up to a pulley anchored to the ceiling. From the pulley, the rope runs down to the belayer. The belayer wears a harness which is anchored to the floor and attached to the Grigri, through which the rope from the ceiling pulley runs. The function of the Grigri is to clamp the rope if the climber should fall. It is designed such that it is automatically clamps the rope if there is a sudden pull on the rope. In order to feed slack to the climber so that he may descend, the belayer must manually pull a lever to release the clamp on the rope.

The members of the Civil Air Patrol were instructed in pairs. Ravey and Kelly were given instructions on how to climb the wall and use the equipment properly. When climbing higher than ten feet along the wall, as Ravey was doing, climbers and belayers are required to wear harnesses attached to a safety rope. After instructions and assistance in donning the protective gear, the climber and [Pg 7] belayer were instructed in the proper method of belaying. Thereafter, the belayers handle the [*11] ropes under the instructors’ supervision.

Once the instructor determines the belayer can handle the safety ropes correctly, the belayers are instructed in the proper procedure for lowering a climber. The belayers must then operate the rope and the Grigri under the supervision of an instructor. After demonstrating an ability to belay the instructor, the belayers are allowed to belay volunteer climbers in the group under the supervision of the instructor.

This safety training session lasted approximately fifteen to twenty minutes. The members of the Civil Air Patrol group were individually instructed in safe climbing and belaying techniques and were observed operating the equipment properly before being allowed to climb and belay on their own. After receiving their safety training in the proper methods of belaying, Ravey, Kelley, and the rest of the Civil Air Patrol group climbed for forty-five minutes to an hour. During this time, two supervisors were present who observed the group to ensure that they were using the gym’s equipment properly. Ravey made five or six climbs on the wall prior to his accident.

There is no evidence to suggest that Rok Haus did not act reasonably in training [*12] its patrons on the proper use of the climbing equipment and in assisting the patrons in donning the equipment. Each patron who belays (operates the safety control device, the Grigri, and controls the safety rope) is personally instructed on the proper belaying techniques and is observed to ensure that the patron is capable of operating the equipment correctly before they are allowed to belay on their own. Furthermore, after completion of the safety check and practice, the climbers remained under the supervision and watch of two supervisors. The absence of evidence as to the material facts of inadequate training and inadequate supervision [Pg 8] makes summary judgment appropriate. As such, summary judgment as to the adequacy and training and supervision was proper.

We note that rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risk associated with these and other physically-challenging sports are well recognized. [HN7] The duty on the gym operator, when these types of sports are conducted, is that of providing a sound and secure environment for undertaking [*13] a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing, weight lifting, or swimming. The duty imposed on the gym is one of reasonable care under the circumstances. Ravey focuses on the age of the boy holding the rope and argues that he should have been given more training because of his age. However, Ravey points to no authority suggesting that fourteen year olds are not adequately mature to perform this kind of activity or that the training was inadequate in this instance. The record contains no evidence to suggest the training was inadequate or that a person of fourteen years would need more training than was given to teach him to perform. It is this total absence of evidence that drives the summary judgment process and, in this case, compels affirmation.

CONCLUSION:

The record contains no evidence to suggest that the duty of Rok Haus to provide training and supervision was not done reasonably under the circumstances. Furthermore, there is no genuine issue of material fact as to the adequacy of training received by the Ravey party prior to engaging in climbing and regarding the adequacy of the supervision provided after training.

Costs [*14] of this appeal are assessed to Ravey.

AFFIRMED

WordPress Tags: Ravey,Rockworks,LEXIS,Carl,Court,Appeal,Louisiana,Third,Circuit,April,NOTICE,DECISION,FINAL,EXPIRATION,PERIOD,PRIOR,HISTORY,FROM,FIFTEENTH,JUDICIAL,DISTRICT,PARISH,LAFAYETTE,HONORABLE,GLENNON,EVERETT,JUDGE,DISPOSITION,COUNSEL,Michael,Remondet,Jeansonne,DEFENDANTS,APPELLEES,Colony,Kilyun,Luke,Williamson,Campbel,Baton,Rouge,PLAINTIFFS,APPELLANTS,JUDGES,John,Saunders,Howard,Ezell,Shannon,Gremillion,OPINION,patron,negligence,supervision,judgment,FACTS,PROCEDURAL,August,Plaintiff,Appellant,mentor,youth,Civil,Patrol,Ascension,women,Unit,Hammond,Haus,facilities,Upon,arrival,participants,Adelle,Anderson,employees,instruction,equipment,climber,device,Grigri,David,Kelley,member,feet,action,insurer,fact,ASSIGNMENTS,ERROR,minors,adequacy,ANALYSIS,Standard,Review,criteria,Supreme,Serv,Sonny,Greer,admission,affidavits,Code,conclusion,Hines,Garrett,Smith,Lady,Lake,Hosp,existence,nonexistence,theory,recovery,scope,Pinsonneault,Merch,Farmers,Bank,Trust,Faucheaux,Terrebonne,Consol,Government,discovery,premises,correction,danger,Alexander,Fire,Life,Assur,Corp,embers,gyms,injury,Thomas,Sport,argument,Prier,Horace,Mann,writ,degree,student,accident,teacher,connection,Again,dangers,incident,principals,teachers,precautions,students,Whitfield,East,insurers,patrons,Gatti,World,Wide,Health,Studios,Charles,failure,usage,instructions,climbers,owner,inadequacy,session,pulley,assistance,gear,method,Thereafter,instructors,Once,instructor,procedure,techniques,hour,supervisors,completion,absence,Many,operator,environment,recreation,instance,person,affirmation,Costs,belay,belayer,five,four,whether,invitee,belayers

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Nicole Azad, Plaintiff and Appellant, v. Mill Creek Equestrian Center, Inc., Defendant and Respondent.

B169611

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT

2004 Cal. App. Unpub. LEXIS 11218

December 13, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC070887. Paul G. Flynn, Judge.

DISPOSITION: Affirmed.

CORE TERMS: equestrian, gross negligence, lesson, ring, dive, misconduct, summary judgment, extreme departure, training, riding, sport, horse, standard of conduct, ordinary negligence, instructor, willful, rider, risks inherent, recommended, dismount, manual, horseback riding, jumping, notice of appeal, material fact, totally outside, triable issue, inappropriate, inherently, correctly

COUNSEL: Law Offices of Diane Goldman and Diane Goldman for Plaintiff and Appellant.

Clinton & Clinton, David A. Clinton and Katherine M. Fesler for Defendants and Respondents.

JUDGES: COOPER, P. J.; RUBIN, J., FLIER, J. concurred.

OPINION BY: COOPER

OPINION

Appellant injured herself falling off a horse during a horseback riding lesson. In this appeal, she challenges the award of summary judgment entered in favor of the equestrian center. Reviewing the record de novo, we find Azad released all claims other than gross negligence and willful misconduct. She does not allege any willful misconduct. Because she provides no evidence of gross negligence, the trial court correctly entered summary judgment. We shall affirm.

FACTUAL BACKGROUND

[*2] The facts interpreted in the light most favorable to Azad indicate the following. On March 16, 2001, Nicole Azad, an inexperienced rider, had a private horseback riding lesson at Mill Creek Equestrian Center, Inc. (MCEC). Prior to her lesson, she signed a release of liability, which was part of a two page document. Each page of the release contained a heading identifying it as a release.

During Azad’s lesson, she rode a horse named Bruno and was instructed by Sandra Samel. Samel chose to hold the lesson in a ring known as the jumping ring even though it was not the ring commonly used for beginning lessons. At the same time as Azad’s lesson, other riders were in the jumping ring including Courtney Leonard. Leonard rode a horse named Dan, who had been injured. Leonard fell off Dan, and Dan started running. In response to Dan, Bruno started running. Azad was unable to gain control over Bruno. Samel did not instruct Azad to immediately dismount and did not grab Bruno’s reins. Bruno jumped the fence, which was not as high as the standard in the industry. Azad fell off Bruno and fractured her leg.

Azad’s expert, Jill Cooke, opined that the height of the railings in the jumping ring [*3] ranged from two to two and a half feet where industry standard was three and a half feet. Cooke also concluded that “separated schooling areas are recommended.” According to Cooke, Samel should have chosen a different ring for Azad’s lesson, one dedicated to inexperienced riders. Cooke also concluded that Samel should have instructed Azad to dismount Bruno and should have held Bruno’s reigns. Cooke opined that “Ms. Samel’s failure to act promptly and appropriately to protect her student thereby created new risk to [Ms. Azad], over and above those inherent in the sport.”

PROCEDURAL BACKGROUND

Azad filed a complaint for negligence against MCEC and alleged that MCEC committed both negligence and gross negligence. MCEC moved for summary judgment.

The trial court granted MCEC’s motion for summary judgment. The court found that Azad’s express waiver was valid and that the assumption of risk doctrine applied. Azad appealed. The notice of appeal was filed after the order granting summary judgment but before judgment was entered. Construing the notice of appeal liberally, we deem this an appeal from the judgment which was subsequently entered. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn 7.) [*4]

DISCUSSION

Azad argues there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

I. Express Assumption of Risk

Prior to her horse back riding lesson, Azad signed the following release:

“I agree that in consideration for this stable allowing my participation in this activity, under the terms set forth herein and in the MILL CREEK RULES AND REGULATIONS of which I received a copy, read, and understand, I the rider and the parent or legal guardian thereof if a minor, and on behalf of my heirs, administrators, personal representative or assigns, do agree to hold harmless, release and discharge MILL CREEK EQUESTRIAN CENTER, its owners, agents, employees, officers, directors, representatives, assigns, members, owner(s) of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as associates) of and from all claims, demands, causes of action and legal liability whether the same be known or unknown, anticipated or unanticipated, due to MILL CREEK [*5] EQUESTRIAN CENTER’S and/or its associates ordinary negligence; and I do further agree that except in the event of MILL CREEK EQUESTRIAN CENTER’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action against MILL CREEK EQUESTRIAN CENTER and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of MILL CREEK EQUESTRIAN CENTER to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of MILL CREEK EQUESTRIAN CENTER, whether on or off the premises of MILL CREEK EQUISTRIAN CENTER. I further understand that all riding engaged in at MILL CREEK EQUESTRIAN CENTER is solely at my own risk and that MILL CREEK EQUESTRIAN CENTER is not liable for any injury which may occur to me on its premises, whether bodily injury or otherwise. I further agree to release MILL CREEK EQUESTRIAN CENTER, its agents and employees from any and all liability for any injuries I may sustain while riding and agree to [*6] indemnify and hold MILL CREEK EQUESTRIAN CENTER harmless as to all claims, actions, damages, costs and expenses, including attorney’s fees, arising therefrom. [P] The aforesaid release and limitation of liability includes, without limitation, any obligations of MILL CREEK EQUESTRIAN CENTER with respect to consequential damage and negligent behavior of any of its employees. . . .” (Emphasis added.)

A. Validity of the Release

Citing Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141-142, 205 Cal. Rptr. 513 (Link), Azad argues that the release is not enforceable because it is not readily identifiable as a release. In Link, the court found that a release should be distinguished from other paragraphs of the document; a release should be conspicuous; and a release must clearly convey that rights are being released. (Ibid.)

The release satisfies the Link criteria. It contains the title “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” Each page of the two page document contains a heading which is printed in bold print and underlined “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, in a paragraph [*7] titled “signer statement of awareness,” there is an acknowledgment of understanding the liability release, which Azad signed. Unlike in Link, the release does not appear to be “calculated to conceal and not to warn the unwary.” (Link, supra, 158 Cal. App. 3d at p. 141.)

Azad claims that it is not clear “what conduct is exempted from liability.” She faults the release for “simultaneously purporting to encompass claims based upon [ordinary negligence] and excluding claims based upon [gross negligence].” Azad points out that, in Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 242 Cal. Rptr. 784, a case not involving a release, the court held “in light of the adoption of the doctrine of comparative negligence in California, any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” (Id. at p. 330.) Continental Insurance Co., however, did not hold that the distinction between ordinary and gross negligence never is relevant or is inherently ambiguous. To the contrary, it recognized that the distinction remained viable where a statute proscribes gross negligence. [*8] (Id. at p. 329.) The express contractual provision distinguishing between ordinary and gross negligence is not inherently ambiguous.

Thus, the release covers conduct other than gross negligence and intentional misconduct. ¹ Azad does not allege intentional misconduct. In the next section, we consider whether Azad has provided any evidence of gross negligence.

1 MCEC argues that the “Release was specific enough to warn Appellant, and to convey that Respondents would not be held liable for any physical injury to Appellant.” While the release discusses liability for “any injury” it expressly excludes “gross negligence and willful and wanton misconduct.”

II. Implied Assumption of Risk

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 311.) A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. (Ibid.) [*9] “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005 (Kahn).)

In Kahn, supra, 31 Cal.4th at p. 996, our high court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’” (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: “the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequences training recommended in the [*10] Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)

Here, Azad has alleged gross negligence on the part of both her instructor and the equestrian center. Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138, 181 Cal. Rptr. 732.) This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity. Therefore, we consider whether Azad has provided any evidence of an extreme departure from the ordinary standard of conduct. [*11] ²

2 Both parties cite numerous cases decided under an ordinary negligence standard, including this division’s decision in Giardino v. Brown (2002) 98 Cal.App.4th 820. We need not assess the applicability of these cases in light of Kahn because here Azad expressly released claims of ordinary negligence.

Azad relies almost exclusively on evidence from her expert, Cooke. However Cooke’s testimony does not demonstrate an extreme departure from the ordinary standard of conduct. Cooke states that the railing should have been higher, it was “recommended” that a ring be used for only one lesson, the choice of rings was “inappropriate,” and Samel’s response was “inappropriate.” Samel should have “immediately had her student dismount.” Cooke also states that Samel was “inadequately trained,” but provides no basis for this conclusion. Thus, this case is not like Kahn, where the plaintiff provided an established training manual and showed an extreme departure from this manual in that there was [*12] evidence she received no training at all. Because Azad identifies no extreme departure from the ordinary standard of conduct, she fails to raise a triable issue of material fact. The trial court correctly entered summary judgment in favor of MCEC. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

DISPOSITION

The judgment is affirmed.

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

WordPress Tags: Release,defendant,plaintiff,Azad,Mill,Creek,Equestrian,Center,Unpub,LEXIS,Nicole,Claims,negligence,Defenses,beginner,rider,lessons,instructor,Another,horse,signature,judgment,Summary,fact,MCEC,arguments,AGREEMENT,INSTRUCTION,FORM,Above,statement,California,instructors,person,purveyor,patron,injury,student,participant,statements,departure,Gross,definition,Kahn,dismissal,complaint,Here,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Horseback,Equine,signor,whether

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.

No. 81 Civ. 4790 (MJL)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

1983 U.S. Dist. LEXIS 15461

July 14, 1983

COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.

ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.

OPINION BY: LOWE

OPINION

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOWE, D. J.

This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. ¹ Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club ["NYRRC"] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.

1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).

Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.

The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.

[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. ² The Court is convinced on the record before it that this question should be resolved by the trier of fact.

2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.

This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.

Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.

Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.

Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.

We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.

For the reasons stated above, defendants’ motion for summary judgment is hereby denied.

It is So Ordered.

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Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Global Travel Marketing, Inc., Petitioner, vs. Mark R. Shea, etc., Respondent.

No. SC03-1704

Supreme Court of Florida

2005 Fla. LEXIS 1454

July 7, 2005, Decided

Notice: [*1] not final until time expires to file rehearing motion, and if filed, determined. prior history: Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions Fourth District – Case No. 4D02-910 (Broward County).

COUNSEL: Greg Gaebe of Gaebe, Mullen, Antonelli, Esco and Dimatteo, Coral Gables, Florida, Edward S. Polk of Conroy, Simberg, Gannon, Krevans and Abel, P.A., Hollywood, Florida and Rodney E. Gould and Brad A. Compston of Rubin, Hay and Gould, P.C., Framingham, Massachusetts, for Petitioner.

Philip M. Burlington of Caruso and Burlington, P.A., West Palm Beach, Florida, Edward M. Ricci and Scott C. Murry of Ricci-Leopold, West Palm Beach, Florida for Respondent.

Louise H. McMurray and Douglas M. McIntosh of McIntosh, Sawran, Peltz. Cartaya and Petruccelli, P.A., Miami, Florida, on behalf of the Florida Defense Lawyers Association and The United States Tour Operators Association as Amici Curiae.

Louise McMurray of Mc McIntosh, Sawran, Peltz. Cartaya and Petruccelli, P.A., Miami, Florida, and Alexander Anolik of San Francisco, California, on behalf of the Association of Retail Travel Agents’ and the Outside Sales Support Network as [*2] Amici Curiae.

Michelle Hankey, William Booth, Maxine Williams and Barbara B. Briggs, West Palm Beach, Florida, on behalf of Legal Aid Society of Palm Beach County as Amicus Curiae.

Steven M. Goldsmith, Boca Raton, Florida and Paul D. Jess, General Counsel, Tallahassee, Florida, On behalf of The Academy of Florida Trail Lawyers as Amicus Curiae.

JUDGES: PARIENTE, C.J. WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., dissents.

OPINION BY: PARIENTE

OPINION: PARIENTE, C.J.

We have for review a decision of the Fourth District Court of Appeal in which the court certified a question of great public importance:

Whether a parent’s agreement in a commercial travel contract to binding arbitration on behalf of a minor child with respect to prospective tort claims arising in the course of such travel is enforceable as to the minor. Shea v. Global Travel Mktg., Inc., 870 So. 2d 20, 26 (Fla. 4^th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As phrased by the Fourth District, the issue is narrow, touching only upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor.

[*3] For the reasons that follow, we determine that the arbitration provision in this commercial travel contract is not unconscionable, in violation of any statutory prohibition, or void as against public policy. Because the mother in this case had authority to enter into this contract on behalf of her minor child, the arbitration provision is valid and enforceable. Accordingly, we answer this narrow question in the affirmative and quash the decision below.

I. FACTS AND PROCEDURAL HISTORY

This case arises from a lawsuit brought by Mark R. Shea (the father) over the tragic death of his eleven-year-old son, Mark Garrity Shea (Garrit), during an African safari that Garrit took with his mother, Molly Bruce Jacobs. n1 Before the trip, Garrit’s mother signed a travel contract for the African safari on behalf of herself and her son with Global Travel Marketing. n2 The contract called for Global Travel to provide Jacobs and Garrit a twenty-five-day safari in Zimbabwe and Botswana at a cost of approximately $ 39,000. The travel contract contained provisions concerning travel documents, medical contingencies, and the travel company’s refund and cancellation policy. The contract included [*4] an arbitration clause:

Any controversy or claim arising out of or relating to this Agreement, or the making, performance or interpretation thereof, shall be settled by binding arbitration in Fort Lauderdale, FL, in accordance with the rules of the American Arbitration Association . . . .

Regarding Garrit, the contract specifically provided:

I, as parent or legal guardian of the below named minor, hereby give my permission for this child or legal ward to participate in the trip and further agree, individually and on behalf of my child or ward, to the terms of the above.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n1 The complaint alleges that during the course of the safari, one or more hyenas dragged Garrit from the tent where he was sleeping alone and mauled him to death.

n2 Garrit’s parents are divorced. Although the record does not reveal which parent had primary custody of Garrit, the father does not contend that the mother lacked authority to sign the arbitration agreement on her son’s behalf.

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After Garrit’s death, [*5] the father, who was named personal representative of his son’s estate, brought suit on behalf of the estate and for both parents as survivors under Florida’s wrongful death statute. The complaint alleged that Global Travel’s failure to fulfill its duty to use reasonable care in operating the safari and warning of dangerous conditions caused his son’s death. A jury trial was requested. Global Travel moved to stay the proceedings and compel arbitration of the father’s claim. In response, the father argued that Jacobs, the mother, did not have legal authority to contract away Garrit’s substantive rights through a release of liability and arbitration clauses.

However, in a hearing on Global Travel’s motion, counsel for the father acknowledged that the validity of the clause releasing Global Travel from liability was not then before the court, and would likely be an issue in the future. The trial court granted Global Travel’s motion to stay the proceedings and compel arbitration, concluding that the arbitration provision bound Garrit’s estate. The court did not determine whether the release of liability was enforceable. n3

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n3 The issue of the pre-injury waiver of liability and whether that issue should be determined in a court of law or in arbitration is not before us. The release of liability reads as follows:

I have been informed and am aware that ADVENTURE TRAVEL CAN BE DANGEROUS and includes certain risks and dangers, including but not limited to . . . dangers of wild animals . . . . I HEREBY RELEASE, WAIVE, INDEMNIFY, and AGREE NOT TO SUE THE AFRICA ADVENTURE COMPANY . . . for any and all losses, damages, or injuries or any claim or demand on account of injury or emotional trauma . . . or on account of death resulting from any cause . . . while the undersigned is participating in a tour or any travel or other arrangements by THE AFRICA ADVENTURE COMPANY . . . .

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The Fourth District reversed. Although it acknowledged that doubt as to the scope of an agreement to arbitrate should be resolved in favor of arbitration, the court determined that “the issue, here, is not one of scope, but of formation—who may be bound by an agreement to arbitrate.” Shea, 870 So. 2d at 23. The court held:

Although we recognize that it is impractical for a parent to obtain a court order before entering into pre-injury contracts, we cannot accept the notion that parents may, carte blanche, waive the litigation rights of their children in the absence of circumstances supported by public policy. Circumstances in which a waiver would be supported by a recognized public policy include waivers in cases of obtaining medical care or insurance or for participation in commonplace child oriented community or school supported activities. We need not decide, here, what additional circumstances might support such a waiver; it is sufficient to state that commercial travel opportunities are not in that category.

Id. at 25. The Fourth District concluded that because the arbitration agreement was unenforceable as to the child on public [*7] policy grounds, the child’s estate could not be bound to arbitrate tort claims arising from the safari. See id. at 26.

II. ANALYSIS

The issue in this case is the enforceability of an agreement by a parent on behalf of a minor child to arbitrate claims arising out of a commercial travel contract. Because the validity of the arbitration agreement is a question of law arising from undisputed facts, the standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that standard of review for pure questions of law is de novo, and no deference is given to the judgment of the lower courts).

Global Travel and the amici curiae supporting its position n4 assert that the Fourth District decision contravenes the requirement in the Federal Arbitration Act (FAA) that questions as to the enforcement of an arbitration agreement be resolved in favor of arbitration, and misapplies public policy by ignoring parents’ authority to enter into contracts on behalf of their children. The father and the amici curiae supporting his position n5 assert that the issue is one of state law not governed by the FAA, that the Fourth [*8] District correctly applied state law in holding that the mother’s agreement to binding arbitration on behalf of her son is unenforceable, and that the public policy of protecting children’s interests overcomes parents’ right to raise their minor children and authority to enter into contracts on behalf of their minor children.

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n4 The Florida Defense Lawyers Association, the United States Tour Operators Association, and the Association of Retail Travel Agents and Outside Sales Support Network.

n5 The Academy of Florida Trial Lawyers and the Legal Aid Society of Palm Beach County.

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A. EFFECT OF FEDERAL LAW

Initially, we reject Global Travel’s assertion that enforcement of the arbitration agreement is mandated by federal law. Although the Federal Arbitration Act, which applies to both federal and state court proceedings, reflects a strong federal policy in favor of enforcement of agreements to arbitrate, the FAA also provides that an arbitration agreement may be ruled unenforceable “upon such grounds [*9] as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2000). The United States Supreme Court has held that under this provision, state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with this requirement of § 2. A court may not, then, in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable . . . . Perry v. Thomas, 482 U.S. 483, 492 n.9, 96 L. Ed. 2d 426 (1987) (citations omitted). In Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996), the Court noted that generally applicable contract defenses under state law, such as fraud, duress, [*10] or unconscionability, may be applied to invalidate arbitration agreements without contravening section 2 of the FAA. Accord Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA), review denied, 884 So. 2d 23 (Fla. 2004); Powertel, Inc. v. Bexley, 743 So. 2d 570, 573-74 (Fla. 1^st DCA 1999).

The public policy of protecting children from waiver of their litigation rights, on which the Fourth District decision rests, is a generally applicable contract principle and is not peculiar to arbitration agreements. We have previously held that contract provisions unrelated to arbitration may be ruled unenforceable on public policy grounds. See Mazzoni Farms, Inc. v. E.I. DuPont Nemours & Co., 761 So. 2d 306, 311 (Fla. 2000) (holding that a choice-of-law provision in a contract is enforceable “unless the law of the chosen forum contravenes strong public policy”). As the Fourth District observed, the issue of whether a parent may validly enter into an agreement on behalf of a minor child to waive the child’s rights is a question not of the scope of the arbitration agreement but rather of contract formation—“who [*11] may be bound by an agreement to arbitrate.” Shea, 870 So. 2d at 23; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 151 L. Ed. 2d 755 (2002) (“The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it does not require parties to arbitrate when they have not agreed to do so.“) (internal quotation marks omitted). Thus, we are not foreclosed by the FAA from determining the enforceability of the arbitration agreement solely on public policy grounds under state law.

B. ENFORCEMENT OF ARBITRATION AGREEMENTS IN GENERAL

In Florida as well as under federal law, the use of arbitration agreements is generally favored by the courts. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). However, this Court has cautioned that “neither the statutes validating arbitration clauses nor the policy favoring such provisions should be used as a shield to block a party’s access to a judicial forum in every case.” Id. at 642. Accordingly, we have held that a statute requiring that every automobile insurance policy for personal injury protection coverage mandate arbitration [*12] of claims disputes involving an assignee of benefits violated medical providers’ access to courts under article I, section 21 of the Florida Constitution. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55, 57 (Fla. 2000). We concluded that, unlike cases in which we have upheld mandatory arbitration legislation, the medical providers’ ability to pursue a remedy in court was not replaced with rights of equal or greater value. See id. at 59.

Agreements to arbitrate are treated differently from statutes compelling arbitration. The difference arises because the rights of access to courts and trial by jury may be contractually relinquished, subject to defenses to contract enforcement including voidness for violation of the law or public policy, unconscionability, or lack of consideration. See generally Mazzoni Farms, 761 So. 2d at 311 (recognizing public policy limitation on choice of law provision in contract); Powertel, Inc., 743 So. 2d at 577 (holding arbitration clause in service contract unconscionable); Vichaikul v. S.C.A.C. Enters., Inc., 616 So. 2d 100, 100 (Fla. 2d DCA 1993) [*13] (“Failure of consideration is a defense to the contract.”). In determining whether to compel arbitration pursuant to the parties’ agreement, a court must consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert, 750 So. 2d at 636.

As stated above, the question of whether a minor child or minor child’s estate may be bound by an agreement to arbitrate made by a parent or guardian on the child’s behalf is a question of contract formation—whether a valid agreement to arbitrate exists. No valid agreement exists if the arbitration clause is unenforceable on public policy grounds. Thus, the issue in this case concerns competing interests: that of the state to protect children and that of parents in raising their children. Where these interests clash on a concrete issue such as the enforceability of a contract entered into on behalf of a minor child, the issue becomes one for the courts.

C. PARENTS AND THE STATE AS GUARDIANS OF MINORS’ LITIGATION RIGHTS

In this case, the trial court based its enforcement of the arbitration agreement [*14] on the “well established principle that parents have a fundamental liberty interest in the care, custody and management of their offspring.” The Fourth District, while acknowledging that Florida law recognizes parental authority to contract for their children to obtain medical care, nonetheless rejected “the notion that parents may, carte blanche, waive the litigation rights of their children in the absence of circumstances supported by public policy.” Shea, 870 So. 2d at 25. Thus, the issue as framed by the decisions in the circuit and district courts is whether the state, through the courts and for reasons of public policy, can override a parent’s right to make this decision by refusing to enforce its consequences.

1. PARENTAL AUTHORITY

Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. The United States Supreme Court, in ruling unconstitutional a grandparent visitation statute enacted in Washington, stated that “it cannot now be doubted that the Due Process [*15] Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49 (2000) (plurality opinion). The Court concluded that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 72-73 (plurality opinion).

In several cases beginning with Beagle v. Beagle, 678 So. 2d 1271, 1272 (Fla. 1996), this Court has held that laws mandating grandparent visitation violate article I, section 23. In addition, this Court has “on numerous occasions recognized that decisions relating to child rearing and education are clearly established as fundamental rights within the Fourteenth Amendment of the United States Constitution.” Von Eiff v. Azicri, 720 So. 2d 510, 513 (Fla. 1998). Thus, in general, “neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting [*16] from those decisions.” Id. at 514.

2. THE STATE AS PARENS PATRIAE

The father, relying on the Fourth District decision, recognizes parents’ broad authority over their children but asserts that the State has greater authority as “parens patriae” to rule the arbitration agreement in this case unenforceable because it is contrary to public policy.

“Parens patriae,” which is Latin for “parent of his or her country,” describes “the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary 1144 (8^th ed. 2004). The doctrine derives from the common-law concept of royal prerogative, recognized by American courts in the form of legislative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600, 73 L. Ed. 2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645 (1944), recognized the parens patriae power when it stated that although the “custody, care, and nurture of the child reside first in the parents, . . . the state as parens patriae may restrict [*17] the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Id. at 166 (footnotes omitted).

In decisions over the past three decades, this Court has expressly relied on the state’s parens patriae authority to protect children in two areas: (1) juvenile delinquency and dependency, see P.W.G. v. State, 702 So. 2d 488, 491 (Fla. 1997); State v. D.H., 340 So. 2d 1163, 1166 (Fla. 1976); In re Camm, 294 So. 2d 318, 320 (Fla. 1974); and (2) child custody and support. See Schutz v. Schutz, 581 So. 2d 1290, 1293 (Fla. 1991); Lamm v. Chapman, 413 So. 2d 749, 753 (Fla. 1982); Kern v. Kern, 333 So. 2d 17, 19 (Fla. 1976). Pervasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) (“Proceedings Relating to Children”); ch. 61, Fla. Stat. (2004) (“Dissolution of Marriage; Support; Custody”); ch. 984, Fla. Stat. (2004) (“Children and Families in Need of Services”); ch. 985, Fla. Stat. (2004) (“Delinquency; Interstate Compact on Juveniles”).

Although there is no statutory prohibition [*18] on agreements to arbitrate minors’ tort claims, the Fourth District deemed statutes governing settlement of minors’ civil claims to be analogous to a pre-injury arbitration agreement.

Under section 744.301(2), Florida Statutes (2004), parents, acting as the natural guardians of their minor children, n6 may settle their children’s claims for amounts up to $ 15,000. A net settlement greater than $ 15,000 on behalf of a minor requires establishment of a legal guardianship. See § 744.387(2), Fla. Stat. (2004). If a legal guardian and a minor have potentially adverse interests, or if otherwise necessary, the trial court may, for a settlement greater than $ 15,000, and must, for a settlement greater than $ 25,000, appoint a guardian ad litem to represent the minor’s interests. See § 744.301(4)(a); Fla. Stat. (2004). A presuit settlement on behalf of a minor requires court authorization, which may be given if the court determines that the settlement is in the minor’s best interest. See § 744.387(1), Fla. Stat. (2004). Settlement of a pending claim also requires court approval. See § 744.387(3)(a), Fla. Stat. [*19] (2004).

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n6 For children of divorced parents, “the natural guardianship shall belong to the parent to whom the custody of the child is awarded.” § 744.301(1), Fla. Stat. (2004).

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There is no comparable statutory scheme governing pre-injury liability releases and arbitration agreements—those executed before any cause of action accrues—and no statute requiring a parent to obtain court approval before agreeing to arbitrate a claim once it has been filed. Thus, with the exception of disputes involving child custody, visitation, or child support, See § 44.104(14), Fla. Stat. (2004), the Legislature has not precluded voluntary binding arbitration of claims involving children.

D. OUT-OF-STATE PRECEDENT

The Fourth District cited precedent from supreme courts of other states invalidating, on public policy grounds, pre-injury releases of liability signed by parents on behalf of their children. See Shea, 870 So. 2d at 23-24. In the first [*20] of these decisions, the Washington Supreme Court held that enforcement of an exculpatory agreement that released a ski school from any liability for injury, signed by a parent on behalf of a minor child participating in the school, was contrary to public policy. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992). The court relied on precedent in other jurisdictions and on a state law, similar to section 744.387, Florida Statutes, that required court approval for parents to settle or release a child’s post-injury claim. See id. at 11. In Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001), the Utah Supreme Court relied on similar statutory protections of minors’ post-injury claims, as well as the statutory right to disaffirm contracts entered into during minority, to hold unenforceable a pre-injury release signed by an eleven-year-old child subsequently injured when she was thrown from a horse. The court stated that “as in Scott, we see little reason to base the validity of a parent’s contractual release of a minor ‘s claim on the timing of an injury.” Id. Most recently, the [*21] Colorado Supreme Court, relying on that state’s laws concerning oversight of the settlement of minors’ legal claims, held that a release and indemnity agreement signed by the parent of a minor who was a competitive skier was unenforceable in a negligence action against a ski club after an accident in which the minor was rendered blind. See Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-34 (Colo. 2002). All three decisions rest on public policy grounds, and each court cited precedent to support its conclusion that it was siding with the clear majority of jurisdictions that had considered the issue. See id. at 1234-36; Hawkins, 37 P.3d at 1065-66; Scott, 834 P.2d at 12.

Significantly, the court in Cooper opined that its decision was not inconsistent with the due process right of parental decisionmaking recognized in Troxel and other United States Supreme Court precedent. The court concluded that a parental release of a child’s right to sue for negligence is “not of the same character and quality as those rights recognized as implicating parents’ fundamental liberty interest in the ‘care, custody and control’ [*22] of their children.” Cooper, 48 P.3d at 1235 n.11. The court also pointed to the United States Supreme Court’s recognition in Prince, 321 U.S. at 166, of the state’s parens patriae authority to guard the “general interest in youth’s well being,” in some circumstances contrary to parental control. Id.

The Massachusetts Supreme Court has reached a contrary conclusion, holding that because a child’s “participation in the city’s extracurricular activity of cheerleading was neither compelled nor essential, . . . the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.” Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 745 (Mass. 2002). Similarly, the Ohio Supreme Court has held that a parent may bind his or her child to a provision releasing volunteers and sponsors of a nonprofit sports activity from liability for negligence. See Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201, 205 (Ohio 1998). n7

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n7 Persuaded by the reasoning in Zivich, the Fourth District in this case crafted an exception for “non-profit entities, their employees, and volunteers” to its holding that arbitration provisions agreed to by parents on behalf of their children in commercial travel contracts are not enforceable. Shea, 870 So. 2d at 25.

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Thus, the courts in Cooper, Hawkins, and Scott ruled invalid, on public policy grounds, pre-injury releases of liability entered into by a parent on behalf of a minor child participating in activities with a for-profit business outside a school or community setting, while the courts in Sharon and Zivich upheld such releases in connection with school, community, and volunteer-run activities. One court has justified the distinction represented by these cases on grounds that the potential liability “is a risk against which a for-profit business may insure itself.” Rice v. Am. Skiing Co., No. Civ.A.CV-99-06, 2000 WL 33677027, at *3 (Me. Super. Ct. May 8, 2000). These decisions are instructive on the issue we decide today, but only to a point, because none of them concerned arbitration agreements. Whether a parent may waive his or her child’s substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.

More pertinent to the issue in this case are the out-of-state cases dealing with an advance agreement by parents to arbitrate any legal [*24] claims of minors or their estates. n8 One line of precedent centers on contracts for medical services. For example, in Doyle v. Giuliucci, 62 Cal. 2d 606, 401 P.2d 1, 3, 43 Cal. Rptr. 697 (Cal. 1965), the California Supreme Court held that a minor could be bound to an arbitration clause in a medical service contract signed by a parent on the child’s behalf. The court concluded that because minors can be assured of group medical service only if parents can contract on their behalf, in fulfilling their duty to provide care for their children parents should have the authority to agree to arbitrate disputes that arise under the contract. See id.; accord Leong v. Kaiser Found. Hosp., 71 Haw. 240, 788 P.2d 164, 169 (Haw. 1990) (relying on Doyle to hold that a minor could not disaffirm an arbitration provision in a contract for medical care signed by his father).

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n8 Because the mother signed the contract on her own behalf and on her son’s behalf, this case is distinguishable from precedent holding that arbitration of minor’s claims cannot be compelled where there was no advance agreement to arbitrate the minor’s claim and the minor was not a third-party beneficiary of the contract. See, e.g., Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1077 (5^th Cir. 2002) (ruling that children who were not signatories to contract, not third-party beneficiaries, and not suing on the basis of the contract were not bound by arbitration agreement signed by their parents), modified, 303 F.3d 570 (5^th Cir. 2002); Costanza v. Allstate Insurance Co., No. CIV.A.02-1492, 2002 WL 31528447, at *7 (E.D. La. Nov. 12, 2002) (determining that because children in bringing personal injury claims did not seek to enforce provisions of contract and were not third-party beneficiaries of contract, claims were not subject to arbitration clause); see also Accomazzo v. CEDU Educ. Servs., Inc., 135 Idaho 145, 15 P.3d 1153, 1156 (Idaho 2000) (concluding that trial court did not err in ruling that a child who was a third-party beneficiary of an education contract signed by his father was not bound to an arbitration clause which did not mention the child).

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In this case, the Fourth District distinguished Doyle on grounds that a commercial travel contract evokes different policy concerns than a contract for medical care. See Shea, 870 So. 2d at 24-25. This determination is consistent with the law of necessaries (or necessities), under which children, who normally are incompetent to contract, may be bound to the terms of contracts for necessary services such as medical treatment. See Lee v. Thompson, 124 Fla. 494, 168 So. 848, 850 (Fla. 1936) (“Except as to a very limited class of contracts considered binding, as for necessities, etc., the modern rule is that the contract of an infant is voidable . . . .”). Thus, Doyle was correctly distinguished below.

In Troshak v. Terminix International Co., No. CIV.A.98-1727, 1998 WL 401693, at *5 (E.D. Pa. July 2, 1998), a federal district court held that a pre-injury arbitration agreement by a parent on behalf of a minor child was unenforceable in a personal injury suit subsequently brought by the minor. Attempting to discern Pennsylvania law in a case of first impression, the federal court relied on two previous federal district court decisions [*26] holding that there is no authority for parents to execute a pre-injury release of liability on behalf of a minor child. See id. at *4-5. Extrapolating from these cases, the court concluded that “if a parent cannot prospectively release the potential claims of a minor child, then a parent does not have authority to bind a minor child to an arbitration provision that requires the minor to waive their right to have potential claims for personal injury filed in a court of law.” Id. at *5.

Troshak appears to rest on the same public policy rationale relied upon by the Fourth District in this case.

An intermediate Ohio appellate court reached the opposite conclusion in Cross v. Carnes, 132 Ohio App. 3d 157, 724 N.E.2d 828 (Ohio Ct. App. 1998). The court extended Zivich, in which the Ohio Supreme Court held an exculpatory agreement enforceable against a minor participating in a nonprofit activity run by volunteers, to require arbitration of the claim of a minor who filed suit against the producers of a commercial television talk show on which she was portrayed as a bully. See id. at 836. The court also distinguished arbitration clauses from releases [*27] of liability:

We note that the parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum.

Id.

E. THIS CASE

The trial court in this case relied on the passage from Cross quoted above to compel arbitration, but the Fourth District, in reversing, relied instead on the limits placed on parental waiver in other areas: “We can discern no common sense reason to depart from the public policy favoring the protection of children from waiver of their basic rights by a parent.” Shea, 870 So. 2d at 25. The Fourth District did not distinguish between releases of liability and arbitration clauses for purposes of its public policy analysis. Nor, apart from categorizing the African safari as a commercial travel opportunity, did the Fourth District relate the safari to other experiences and activities that parents might choose to make available to their minor children. See id. The Fourth District [*28] decision thus implicitly rests on two conclusions:

the opportunity to present a claim in court is so basic a right that its waiver is tantamount to a forfeiture of the claim, and the benefits to children of commercial travel opportunities do not justify enforcement of a parent’s decision to agree to arbitrate a child’s claims arising out of the travel contract. We disagree.

As to the first conclusion, the nature of the waiver agreed to by a parent on behalf of a child—whether it concerns waiver of a legal claim or right, or waiver of the forum in which the claim is presented—is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable. While the rights of access to the courts and trial by jury are valuable constitutional rights, we cannot equate a pre-injury release of liability with a pre-injury agreement to arbitrate. As noted by the Ohio court in Cross, such an agreement “does not extinguish the claim.” 724 N.E.2d at 836.

Instead, an arbitration agreement constitutes a prospective choice of forum which “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, [*29] and expedition of arbitration.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444 (1985). The relative advantages and disadvantages of arbitration and litigation may make one path or another preferable to a party, but nothing in the opinion below, the arguments of the parties, or our precedent suggests that an arbitration clause alone is tantamount to waiver or forfeiture of a wrongful death or personal injury claim. In recognizing this distinction, we emphasize that we are assessing only the enforceability of the arbitration clause in this case, and not the release clause.

Further, the lack of a statutory requirement for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances pursuant to sections 744.301 and 744.387, Florida Statutes (2004). The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but [*30] has not exercised its prerogative as parens patriae to prohibit arbitration of those claims. Instead, the Legislature has specifically authorized enforcement of agreements to arbitrate pending civil disputes while specifically exempting only disputes involving custody, support, and visitation. See § 44.104(14), Fla. Stat. (2004).

The Fourth District decision also reflects an arbitrary distinction between those activities for which an agreement to arbitrate is supported by public policy, and “commercial travel opportunities,” where a parental agreement to arbitrate may be overridden by the state. The court acknowledged the legitimacy of waivers for purposes of obtaining medical care and insurance—which involve the health and security of the child with no educational component—and for “commonplace child oriented community or school supported activities.” Shea, 870 So. 2d at 25.

The distinction drawn by the Fourth District notwithstanding, the line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or community activities might also involve commercial travel. The [*31] Fourth District decision might prevent arbitration of claims of minors arising from their parents’ decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arranging for the same activity.

We see no basis in fact or law for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in. n9 Moreover, the alternative of requiring parents to seek court approval before entering into commercial travel contracts that include arbitration agreements would place courts in a position of second guessing the decisionmaking of a fit parent. As the United States Supreme Court observed in Troxel, there is a presumption that fit parents act in the best interests of their children. . . . Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s [*32] children. 530 U.S. at 68-69 (plurality opinion). There is no indication in this case that the mother was unfit or that the African safari was so inherently dangerous that she failed to act in her child’s best interests in allowing him to participate in this adventure.

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n9 The Third District, citing Shea, has held that a city’s fire rescue explorer program is an activity for which public policy supports a pre-injury release of liability executed by a parent in authorizing the child’s participation. See Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067 (Fla. 3d DCA 2004). Because the issue of a pre-injury waiver of all liability is not before us, we do not address the Third District’s decision in Gonzalez.

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Travel’s beneficial effects on the young are well known. Sir Francis Bacon wrote that “travel, in the younger sort, is a part of education; in the elder, a part of experience.” The Oxford Dictionary of Quotations 27 (3d ed. 1979). Had Garrit survived, the [*33] safari (his second) could have significantly broadened his horizons, possibly leading him to pursue a career in zoology or wildlife conservation, or it might have enhanced and sustained a lifelong interest in the people, cultures, wildlife, and geography of the African continent. n10

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n10 Global Travel states in its initial brief that Garrit “had, by all accounts, become enthralled with Africa and with the animals he saw in the bush during a similar safari the year before his tragic death, returning from that safari to read up on those animals and study the matter exhaustively.” The father does not dispute these representations.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

Parents’ authority under the Fourteenth Amendment and article I, section 23 encompasses decisions on the activities appropriate for their children—whether they be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, as in this case, an adventure vacation in a game reserve. [*34] Parents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to agree in advance to arbitrate a resulting tort claim if the risks of these activities are realized.

Just as the mother in this case had the authority to enter into a contract for herself and her minor child to travel to Africa for a safari, she also had the authority to agree to arbitrate claims on his behalf arising from that contract. In the absence of legislation restricting agreements to arbitrate the potential claims of minors, enforcement of these agreements in commercial travel contracts is not contrary to the public policy of protecting children.

III. CONCLUSION

For the reasons set forth above, we hold that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor or minor’s estate in a tort action arising from the contract. We emphasize that we decide only the narrow issue presented by the certified question. Because the validity of the release of liability in the travel contract in this case is not before us, we express no opinion whether the release is enforceable or whether its enforceability [*35] should be decided by the trial court or by arbitration. Accordingly, we answer the certified question in the affirmative, quash the decision of the Fourth District, and remand for proceedings not inconsistent with this opinion.

It is so ordered.

WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., dissents.

WordPress Tags: Global,Travel,Shea,LEXIS,Petitioner,Mark,Respondent,Supreme,Court,Florida,Notice,history,Application,Review,Decision,District,Appeal,Direct,Conflict,Decisions,Fourth,Case,Broward,COUNSEL,Greg,Gaebe,Mullen,Antonelli,Esco,Dimatteo,Coral,Gables,Edward,Polk,Conroy,Simberg,Gannon,Krevans,Abel,Hollywood,Rodney,Gould,Brad,Compston,Rubin,Framingham,Massachusetts,Philip,Burlington,Caruso,West,Palm,Beach,Ricci,Scott,Murry,Leopold,Louise,McMurray,Douglas,McIntosh,Sawran,Peltz,Cartaya,Petruccelli,Miami,Defense,Lawyers,Association,States,Tour,Operators,Amici,Curiae,Alexander,Anolik,Francisco,California,Retail,Agents,Outside,Sales,Support,Network,Michelle,Hankey,William,Booth,Maxine,Williams,Barbara,Briggs,Legal,Amicus,Steven,Goldsmith,Boca,Raton,Paul,General,Tallahassee,Academy,Trail,JUDGES,PARIENTE,WELLS,ANSTEAD,QUINCE,CANTERO,BELL,LEWIS,OPINION,importance,Whether,agreement,arbitration,tort,Mktg,jurisdiction,Const,waiver,provision,violation,prohibition,policy,FACTS,PROCEDURAL,lawsuit,death,Garrit,African,safari,Bruce,Jacobs,Zimbabwe,Botswana,cost,contingencies,cancellation,clause,controversy,performance,interpretation,Fort,Lauderdale,accordance,American,guardian,permission,ward,Footnotes,complaint,tent,parents,Although,custody,estate,survivors,statute,failure,jury,proceedings,response,clauses,injury,ADVENTURE,DANGEROUS,dangers,HEREBY,RELEASE,WAIVE,INDEMNIFY,AGREE,AFRICA,COMPANY,injuries,account,trauma,scope,formation,notion,litigation,absence,Circumstances,waivers,insurance,participation,opportunities,category,ANALYSIS,Angelo,Fitzmaurice,deference,judgment,requirement,Federal,enforcement,Trial,EFFECT,assertion,agreements,revocation,origin,principle,fact,litigants,manner,basis,Perry,Thomas,citations,Doctor,Associates,Casarotto,fraud,Accord,Orkin,Petsch,Powertel,Bexley,Mazzoni,Farms,DuPont,Nemours,forum,EEOC,Waffle,House,quotation,Thus,Seifert,Home,Corp,statutes,automobile,protection,coverage,providers,article,Constitution,Nationwide,Fire,Pinnacle,Medical,legislation,difference,limitation,Vichaikul,Enters,Where,STATE,GUARDIANS,MINORS,RIGHTS,management,circuit,consequences,PARENTAL,Fourteenth,Amendment,privacy,grandparent,visitation,Washington,Troxel,Granville,Beagle,laws,addition,education,Eiff,Azicri,legislature,PARENS,PATRIAE,Latin,provider,Black,Dictionary,doctrine,concept,prerogative,Snapp,Puerto,Rico,Barez,Prince,attendance,decades,areas,delinquency,dependency,Camm,Schutz,Lamm,Chapman,Kern,Pervasive,Stat,Children,Dissolution,Marriage,Families,Services,Interstate,Compact,Juveniles,settlement,Under,amounts,establishment,guardianship,authorization,approval,action,exception,PRECEDENT,Mountain,Resort,Wash,jurisdictions,Hawkins,Peart,Utah,protections,horse,Most,Colorado,negligence,accident,Cooper,Aspen,Colo,conclusion,recognition,youth,Commonwealth,prerequisite,Sharon,Newton,Mass,Ohio,Zivich,Mentor,Soccer,Club,entities,employees,connection,distinction,Rice,Super,estates,example,Doyle,Giuliucci,Rptr,Leong,Kaiser,Found,Hosp,beneficiary,Fleetwood,Gaskamp,signatories,beneficiaries,Costanza,Allstate,Accomazzo,CEDU,Educ,Servs,Idaho,determination,necessities,treatment,Thompson,Except,infant,Troshak,Terminix,International,Pennsylvania,rationale,Cross,Carnes,producers,television,purposes,conclusions,forfeiture,Instead,procedures,expedition,Mitsubishi,Motors,Soler,Chrysler,Plymouth,advantages,disadvantages,path,arguments,Further,involvement,settlements,lawsuits,appointment,health,component,judgments,Moreover,presumption,realm,indication,Third,explorer,Gonzalez,Francis,Bacon,Oxford,Quotations,horizons,wildlife,conservation,geography,continent,bush,representations,pursuits,football,vacation,Just,behalf,enforceable,upon,eleven,carte,blanche,unenforceable,novo,neither,pursuant,three,litem,exculpatory,disaffirm

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

Sara Hohe, a Minor, etc., Plaintiff and Appellant, v. San Diego Unified School District, Defendant and Respondent; Mission Bay High School Parent, Teacher and Student Association, Defendant and Appellant.

Docket No. D010796.

Court of Appeal of California, Fourth District, Division One.

November 8, 1990.

Appeal from Superior Court of San Diego County, No. 598500,

Kevin W. Midlam, Judge.

Page 1560

[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]

Page 1561

[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]

Page 1562

Counsel

Robert P. Irwin for Plaintiff and Appellant.

Lewis, D’Amato, Brisbois & Bisgaard, Peter L. Garchie and Philip

A. Book for Defendant and Appellant.

McInnis, Fitzgerald, Rees, Sharkey & McIntyre and Steven J.

Cologne for Defendant and Respondent.

Opinion

Lim, J.[fn*]

[fn*] Assigned by the Chairperson of the Judicial Council.

Plaintiff Sara Hohe (Hohe), a minor, by her guardian ad litem, Steven Hohe, appeals after the court granted summary judgment in favor of defendants San Diego Unified School District (School District) and Mission Bay High School Parent, Teacher and Student Association (PTSA). The court found the releases signed by Hohe and Steven Hohe on his daughter’s behalf barred her personal injury lawsuit. Hohe contends the court erred because the releases are contrary to public policy, unenforceable because of her minority and unenforceable because of fraud in the inducement. She also argues the written release did not clearly notify her or her parent of its effect. We conclude a triable issue of fact exists regarding the releases’ scope and effect. We therefore reverse the judgment. Accordingly, PTSA is not entitled to attorney fees or costs.

FACTS

Hohe, a 15-year-old junior at Mission Bay High School in San Diego, was injured during a campus hypnotism show sponsored by the PTSA as a fund-raiser

Page 1563

for the senior class. Hypnotism shows had been held annually since 1980.

Hohe was one of 18 or 20 subjects selected at random from a group of many volunteers. Her participation in the “Magic of the Mind Show” was conditioned on signing two release forms. Hohe’s father signed a form entitled “Mission Bay High School PTSA Presents Dr. Karl Santo.”[fn1] Hohe and her father both signed a form entitled “KARL SANTO HYPNOTIST.”[fn2]

Hohe saw the prior year’s hypnotism show. She explained to her father that it would be fun, the show was popular and discussed at least one previous stunt where a subject was suspended between two objects while another person stood on the subject’s stomach.

She also said people sang.

During the course of the show, Hohe slid from her chair and also fell to the floor about six times.

DISCUSSION

I

(1) Hohe argues the releases she and her father signed are contrary to public policy. We disagree. “[N]o public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. . . .” (Tunkl v.

Regents of University of California (1963) 60 Cal.2d 92, 101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Madison v.

Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299] ; see Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333,

343 [214 Cal.Rptr. 194] [parachuting]; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 612 [246 Cal.Rptr. 310] [dirt biking].)

Page 1564

An attempted but invalid exemption from liability “involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98-100, fns. omitted.)

The circumstances here present an entirely different situation.

Hohe volunteered to be part of a PTSA activity because it would be “fun.” There was no essential service or good being withheld by PTSA. Hohe, like thousands of children participating in recreational activities sponsored by groups of volunteers and parents, was asked to give up her right to sue. The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.

Those options are steadily decreasing — victims of decreasing financial and tax support for other than the bare essentials of an education. Every learning experience involves risk. In this instance Hohe agreed to shoulder the risk. No public policy forbids the shifting of that burden.

II

(2) Hohe also argues the release from liability cannot be enforced against her because she is a minor. The permission and waiver forms were signed on her behalf by her parent. Hohe also signed one of the release documents.

It is true, with certain limited exceptions, a minor can disaffirm his or her contract. Civil Code section 35 Civ. provides, in relevant part, “the contract of a minor may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards. . . .” (Doyle v. Giuliucci (1965) 62 Cal.2d 606,

609 [43 Cal.Rptr. 697, 401 P.2d 1].) The purpose of Civil Code section 35 Civ. is to protect the minor from his own improvidence. It is often said, “he who affirmatively deals with a minor, does so at his peril.” (Holland v. Universal Underwriters Ins. Co. (1969) 270 Cal.App.2d 417, 422 [75 Cal.Rptr. 669].) However, the releases signed here were signed on

Page 1565

Hohe’s behalf by her parent. A parent may contract on behalf of his or her children. Civil Code section 35 Civ. was not intended to affect contracts entered into by adults on behalf of their children. (Doyle v. Giuliucci, supra, 62 Cal.2d at p. 609.)

The court in Celli v. Sports Car Club of America, Inc. (1972)

29 Cal.App.3d 511, 517 [105 Cal.Rptr. 904], found a release signed by a nine-year-old invalid because, among other reasons, the minor’s signature was the only signature on the release. We therefore hold Hohe cannot disaffirm the release based on her minority.

III

(3a) Hohe also attacks the release based on fraud because the permission form bore the heading “Mission Bay High School PTSA Presents Dr. Karl Santo.” It was undisputed the hypnotist was not a medical doctor. Hohe and her father signed a second release form which was simply captioned “KARL SANTO HYPNOTIST.” The question facing the court was whether a material and triable factual issue existed based on the alleged fraudulent content of the release. We think not.

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact. (Code Civ. Proc., § 437c Civ. Proc., subd. ©; Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 804 [270 Cal.Rptr. 585].) (4) The necessary elements of fraud are (1)

misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., induce reliance; (4) justifiable reliance; and (5)

resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977, 136 A.L.R. 1291]; Molko v. Holy Spirit Assn.

(1988) 46 Cal.3d 1092, 1108 [252 Cal.Rptr. 122, 762 P.2d 46].)

(3b) The record before us does not disclose evidence which creates a triable and material issue of fact. Use of the title “Dr.” did not falsely represent the hypnotist as a medical doctor or show PTSA intended such a representation. There is also no evidence PTSA intended to induce reliance or Hohe justifiably relied in any way. Hohe has not presented a triable issue of fact on the question of fraud to defeat the summary judgment.

IV

(5a) The more troublesome issue before us is the scope and effect of the release forms. (6a) Hohe contends the executed forms do not clearly and unequivocally release School District and PTSA from liability for negligence.

“[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own

Page 1566

negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”

(Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983)

147 Cal.App.3d 309, 318 [195 Cal.Rptr. 90]; Madison v.

Superior Court, supra, 203 Cal.App.3d at p. 598; Celli v.

Sports Car Club of America, Inc., supra, 29 Cal.App.3d at pp.

518-519.)

(5b) The permission form signed by Steven Hohe “waive[d] all liability against PTSA, its members, Mission Bay High School, and the San Diego Unified School District.” The form began with precautionary language stating children with mental disorders or of a nervous disposition were not allowed to participate. The parent was advised to exercise parental discretion because the anticipated program might contain an adult theme. The additional form signed by both Hohe and her father stated “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show. . . .” This second document signed at the same time as the permission form granted Karl Santo the authority to broadcast and record Hohe’s performance and to use her name and likeness for promotional purposes. It also specifically indemnified Santo from any liability due to Hohe’s utterances while participating in the show.

(6b) A valid release must be simple enough for a layperson to understand and additionally give notice of its import. A drafter of such a release faces two difficult choices. His Scylla is the sin of oversimplification and his Charybdis a whirlpool of convoluted language which purports to give notice of everything but as a practical matter buries its message in minutiae.

In Celli v. Sports Car Club of America, Inc., supra,

29 Cal.App.3d at page 525, appendix, a release printed on the back of a race car pit pass in six point type attempted to “[release, remise and forever discharge] from any and every claim, demand, action or right of action whatsoever kind or nature, in law or in equity, arising from or by reason of any injury to or death of any person, . . . resulting or alleged to result from or arise out of any accident or other occurrence during or in connection with the foregoing event and/or any practice session in connection therewith, and/or any use of the course and/or facilities provided for such event.” The Celli court found the release invalid.

In Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at page 319, a release consisting of a convoluted 147-word

Page 1567

sentence contained no releasing words such as “‘release,’ ‘remise,’ ‘discharge,’ ‘waive’ or the like.” The Ferrell court found the release invalid.

(5c) The question here is whether the release and waiver language in the documents signed by Hohe and her father exculpates PTSA and School District from the consequences of its own breach of duty.

A line of cases exists suggesting a release to be effective against “active” negligence must specifically refer to “negligence” in the language of the contract. In other words, a general release will not protect a party from liability unless the negligent acts are ones of nonfeasance or “passive”

negligence. (Vinnell Co. v. Pacific Elec. Ry. Co. (1959)

52 Cal.2d 411, 415 [340 P.2d 604]; Markley v. Beagle (1967)

66 Cal.2d 951, 962 [59 Cal.Rptr. 809, 429 P.2d 129]; MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal.App.3d 413,

422 [105 Cal.Rptr. 725].)

However, an analysis based on the “active-passive dichotomy” or on the absence or presence of a specific reference to “negligence” is not dispositive. (See Rossmoor Sanitation, Inc.

v. Pylon, Inc. (1975) 13 Cal.3d 622, 632 [119 Cal.Rptr. 449,

532 P.2d 97].) (7) “[I]t is manifest that it is the intent of the parties which the court seeks to ascertain and make effective. Where . . . the circumstances of the claimed wrongful conduct dictate that damages resulting therefrom were intended to be dealt with in the agreement, there is no room for construction of the agreement. It speaks for itself.” (Harvey Mach. Co. v.

Hatzel & Buehler, Inc. (1960) 54 Cal.2d 445, 449 [6 Cal.Rptr. 284,

353 P.2d 924] distinguishing Vinnell Co. v. Pacific Elec.

Ry. Co., supra, at p. 415.) Whether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.” (Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d at p. 633.)

(5d) The permission form signed by Hohe’s father and the additional indemnification and “hold harmless” form signed by both Hohe and her father are general releases. There is no language which specifically speaks to a release from liability for negligence. Nor is there any language which specifically alerts the parent his child is barred from a recovery based on her bodily injury. It is true, “[t]o require that an express indemnity clause be cast in (a) rote form . . . is to compel contracting parties to lie upon a [P]rocrustean bed of linguistic formalism that inhibits the clear meaning of plain English.”

(C.I. Engineers & Constructors, Inc. v. Johnson & Turner Painting Co. (1983) 140 Cal.App.3d 1011, 1018 [189 Cal.Rptr. 824] .) Our analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence”

or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in

Page 1568

the release forms before the court. In this instance, the intention as expressed in the releases signed by the parent for his child is not clear. Although the parent waived all liability it was in the context of two documents which focused on mental and nervous disorders, defamation and broadcast rights. The scope of the waiver is ambiguous. Where the intention of the parties on the face of the releases is ambiguous, a triable factual issue is presented. (8) Any doubts as to the propriety of granting the motion for summary judgment should be resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449,

398 P.2d 785]; Slivinsky v. Watkins-Johnson Co., supra,

221 Cal.App.3d at p. 804.) We are mindful of the salutary purposes sometimes served by releases in diminishing the risk of litigation to groups and entities sponsoring student and recreational activities. However we cannot say the release documents signed by Hohe and her parent bar recovery for her personal injuries as a matter of law. Accordingly, we must reverse the summary judgment.

V

Finally, Hohe contends hypnotism is an ultrahazardous activity.

It is unnecessary to reach this issue in deciding whether or not the court properly granted summary judgment. We decline Hohe’s invitation to direct the court on how it should receive evidence on that issue.

VI

We similarly need not decide whether or not the attorney fees provision found in the release forms would entitle PTSA to attorney fees. The court denied PTSA its attorney fees and costs on its motion for summary judgment. Since we have decided the court erred in granting judgment to PTSA, it follows PTSA is not entitled to attorney fees or costs.

DISPOSITION

The judgment is reversed. The order denying attorney fees and costs is affirmed. All parties to bear their own costs on appeal.

Huffman, Acting P.J., concurred.

[fn1] The release form read as follows: “CAUTION [¶] Children with any mental disorder or of a nervous disposition are not allowed to participate. A portion of the program occasionally contains adult theme; parental discretion is advised.

“SUBJECTS ARE REQUIRED TO ARRIVE AT 6:30 p.m.

“My son/daughter Sarah Hohe, grade 11 has my permission to be hypnotized by Dr. Karl Santo during his program at Mission Bay High School. I waive all liability against the PTSA, its members, Mission Bay High School, and the San Diego Unified School District.”

[fn2] The form read in part: “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show including any utterances made by me during the above named show or material furnished by me in connection with my participation in the show. I am solely responsible for my appearance in the show and for any loss to any party arising therefrom. [¶] I acknowledge that I am not receiving any compensation from my participation or the above authorization; and that you are relying on the above understandings in your use and broadcasting of my participation and in the production and promotion of the Magic of the Mind Show.”

NARES, J., Dissenting.

Although I agree completely with sections I through III of the majority opinion, I dissent from the conclusion[fn1] reached Page 1569 in section IV. The release signed here clearly, plainly, and unambiguously informs a signer it is a release of “all liability, loss or damage . . . caused by or arising in any manner from my participation in the Magic of the Mind Show.”

(Italics added.) In all fairness, it is difficult to imagine what more any drafter could do to advise a layperson the release covers all types of liability than to say so.

Of course, I acknowledge the series of cases stating the word “negligence” must be used if negligence is to be released. (See, e.g., Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd.

(1983) 147 Cal.App.3d 309, 319 [195 Cal.Rptr. 90].)

However, as the majority correctly notes, the validity of a release should not turn on “magic” words. Instead, the issue is whether a layperson such as Hohe understood, from whatever language used, that she was releasing persons from negligence liability.

With this in mind, I turn (as does the majority) to the question of the parties’ intention when these release forms were signed. In resolving this question, the following facts are undisputed: (1) Sara had seen the hypnotism show before; (2) part of the show involved hypnotized persons falling down; (3) Sara solicited the opportunity to be hypnotized; and (4) prior to the show she (and her father) released the hypnotist and any third parties “from any and all liability.” (Italics added.)

I am unable to discern, as does the majority, the existence of any ambiguity in the phrase “any and all liability.”[fn2] Sara had seen the show, was aware that participants would fall down, and elected to be among them. She now seeks compensation for injuries allegedly incurred when she fell down. The alleged harm is precisely that for which she released all others from liability. (Cf. Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]; Kurashige v. Indian Dunes, Inc. (1988)

200 Cal.App.3d 606 [246 Cal.Rptr. 310]; Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal.Rptr. 181]; Hulsey v.

Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194] .) Based upon the foregoing, I would hold the release effective and affirm the judgment.

[fn1] I agree with the majority’s statements in section IV regarding the social value of releases and the difficulties which face the successful drafter of a release.

[fn2] The release, quoted in footnote 2 of the majority opinion, ante, page 1563, is not written in legalese or insurance company double-talk.

Page 1570

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Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

Merav Sharon vs. City of Newton.

SJC-08671

Supreme Judicial Court of Massachusetts

437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

April 2, 2002, Argued

June 10, 2002, Decided

Prior History: [***1] Middlesex. Civil action commenced in the Superior Court Department on November 5, 1998. A motion to amend answer was heard by Martha B.

Sosman, J., and the case was heard by Leila R. Kern, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Disposition: Affirmed.

Headnotes: Practice, Civil, Answer, Amendment, Motion to amend. Parent and Child, Education. Release. School and School Committee, Liability for tort.

Public Policy. Contract, Minor, Release from liability, Consideration.

Negligence, Contractual limitation of liability, School. Massachusetts Tort Claims Act. Governmental Immunity.

Counsel: Jeffrey Petrucelly for the plaintiff.

Richard G. Chmielinski, Assistant City Solicitor, for the defendant.

The following submitted briefs for amici curiae: Thomas J. Urbelis for Massachusetts City Solicitors and Town Counsel Association.

Michael K. Gillis & John J. St. Andre for The Massachusetts Academy of Trial Attorneys.

Leonard H. Kesten & Patricia M. Malone for Massachusetts Municipal Association.

Judges: Present (Sitting at Barnstable): Marshall, C.J., Greaney, Ireland, Spina, & Cordy, JJ.

Opinion by: Cordy

Opinion: [**741]

[*100] CORDY, J. In this case, we consider the question of the validity of a release signed by the parent of a minor child for the purpose of permitting her to engage in public school extra-curricular sports activities. The question is one of first impression in the Commonwealth.

A. Background.

On November 8, 1995, sixteen year old Merav Sharon [***2] was injured while participating in a cheerleading practice at Newton North High School. Merav fell from a teammate’s shoulders while rehearsing a pyramid formation cheer and sustained a serious compound fracture to her left arm that required surgery. n1 At the time of her injury, Merav had had four seasons of cheerleading experience at the high school level.

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n1 Merav Sharon’s injury occurred during a cheerleading squad practice in the school’s dance studio that was equipped with one-inch thick mats on the floor.

The team used members of the squad as spotters while performing difficult stunts or cheers. While such spotters were in place at the time of Merav’s injury, her spotter was not able to catch her or break her fall from the top of the pyramid.

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On November 5, 1998, having reached the age of majority, Merav filed suit against the city of Newton, alleging negligence (Count I) and the negligent hiring and retention of the cheerleading coach (Count II). n2 The city filed its answer on December 24, 1998. In late [***3] October, 1999, during the course of discovery, the city came across a document entitled “Parental Consent, Release from Liability and Indemnity Agreement” signed by Merav and her father in August, 1995, approximately three months prior to the injury. The relevant part of the release reads as follows:

“[I] the undersigned [father] . . . of Merav Sharon, a [*101] minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE, acquit, discharge, and covenant to hold harmless the City of Newton . . . from any and all actions, causes of action, [and] claims . . . on account of, or in any way growing out of, directly or indirectly, all known and unknown personal injuries or property damage which [I] may now or hereafter have as the parent . . . of said minor, and also all claims or right of action for damages which said minor has or hereafter may acquire, either before or after [she] has reached [her] majority resulting . . . from [her] participation in the Newton Public Schools Physical Education Department’s athletic programs . . . .”

The city filed a motion for summary judgment raising the signed release as a defense.

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n2 The negligence claims were brought against the city of Newton pursuant to the Massachusetts Tort Claims Act, G. L. c. 258.

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Merav filed an opposition to the city’s motion for summary judgment in which she argued that, because the release had not been raised as an affirmative defense in the city’s answer, it should be deemed waived. Shortly thereafter, the city filed a motion to amend its answer in order to add the release as an affirmative defense. One judge in the Superior Court allowed the city’s motion to amend on June 30, 2000, and a second judge subsequently allowed the city’s motion for summary judgment based on the validity of the release. n3 [**742] In her ruling, the judge concluded that “[a] contrary ruling would detrimentally chill a school’s ability to offer voluntary athletic and other extra -curricular programs.”

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n3 The city also filed a motion to implead Merav’s father as a third-party defendant based on the release. This motion was granted but the third-party complaint was subsequently dismissed as moot.

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Merav filed a timely appeal claiming that (1) the motion judge abused her discretion by allowing the city to amend its [***5] answer late; (2) the grant of summary judgment was inappropriate because genuine issues of material fact remained in dispute; and (3) the release signed by Merav and her father was invalid because (a) she disavowed it on attaining her majority n4; (b) the release violates public policy; (c) the release is contrary to the [*102] Massachusetts Tort Claims Act, G. L. c. 258, § 2; and (d) the release is invalid for lack of consideration. We transferred the case here on our own motion and now affirm the grant of summary judgment in favor of the city. n5

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n4 The city concedes that minors may ratify or disaffirm their own contracts on reaching the age of majority. It prevailed below on the theory that Merav’s father could effectively waive her claim by signing the release.

n5 We acknowledge amicus briefs of the Massachusetts City Solicitors and Town Counsel Association, the Massachusetts Municipal Association, and The Massachusetts Academy of Trial Attorneys.

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B. Discussion.

1. Amendment [***6] of the city’s answer. Merav claims that the allowance of the city’s untimely motion to amend its answer was prejudicial error and that, because the city failed to raise the release as an affirmative defense in its original answer, the defense should be deemed waived.

It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense. See Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974); Leahy v. Local 1526, Am. Fed’n of State, County & Mun. Employees, 399 Mass. 341, 351, 504 N.E.2d 602-352 (1987), citing J.W. Smith & H.B. Zobel, Rules Practice § 8.6, at 797-798 (1974 & Supp. 1986); Coastal Oil New England, Inc. v. Citizens Fuels Corp., 38 Mass. App. Ct. 26, 29 n.3, 644 N.E.2d 258 (1995). It is equally well settled that a party may amend its pleading by leave of court and that such leave “shall be freely given when justice so requires.” Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (interpreting identical language [***7] in Federal rule and stating mandate that leave to amend “shall be freely given when justice so requires” is to be heeded).

Merav contends that the combination of undue delay and prejudice to her case should have led the judge to deny the city’s motion to amend. While we have often upheld a judge’s discretion to deny leave to amend based in part on undue delay, such denials have generally been coupled with consideration of other factors such as imminence of trial and futility of the claim sought to be added. See, e.g., Leonard v. Brimfield, 423 Mass. 152, 157, 666 N.E.2d 1300 (1996); Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264, 565 N.E.2d 1180 (1991); Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292, 361 N.E.2d 1264 (1977). Given that the amendment in this [*103] case did not raise a new issue on the eve of trial and could not be considered futile or irrelevant to the city’s defense, the judge did not abuse her discretion in granting the motion to amend the city’s answer.

2.

Summary Judgment.

By proffering the release signed by Merav and her father releasing the city [**743] from any claims that Merav [***8] might acquire from her participation in the city’s athletic program, the city has met its initial burden of demonstrating that Merav’s negligence claim is likely to be precluded at trial.

n6 In response, Merav contends both that there are issues of material fact in dispute regarding the validity of the release, and that it is unenforceable as a matter of law and public policy. We conclude that the facts Merav contends are in dispute are not material, enforcement of the release is consistent with our law and public policy, and Newton is entitled to judgment as a matter of law.

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n6 When a release is raised in defense of such a claim, the plaintiff bears the burden of proving that it is not a valid bar to her suit. See Gannett v. Lowell, 16 Mass. App. Ct. 325, 327, 450 N.E.2d 1121 (1983).

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a. Merav’s factual contentions. Merav first argues that there are disputed issues of material fact regarding her understanding of the release and its voluntariness. She contends that neither she nor her father [***9] realized that by signing the release they were waiving their future claims against the school, and that their understanding of what they signed is a matter of fact to be decided by a jury. As the motion judge properly noted, “it is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects.” Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 209 N.E.2d 329-551 (1965). The undisputed evidence supports the conclusion that both Merav and her father had ample opportunity to read and understand the release before signing it, and they are therefore deemed to have understood it. Cormier v. Central Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 289, 620 N.E.2d 784 (1993).

The release is a clearly labeled, two-sided document, which Merav brought home from school for her parents to review. Merav and her father both signed the front of the release, which they indicated was for the sport of “cheerleading.”

In addition, [*104] they filled out the back of the release that called for information regarding Merav’s address, date of birth, health insurance provider, and emergency [***10] contacts, and which provided for the purchase of optional student accident insurance through the school (an option which they explicitly declined on the form). Her father also signed the back of the release giving parental consent to a physical examination of Merav prior to her participation in the cheerleading program. In these respects, the circumstances differ substantially from the so-called “baggage check” or “ticket” cases relied on by Merav in which a customer merely purchases a ticket or receives a receipt that contains release language. See Lee v. Allied Sports Assocs., Inc., supra; O’Brien v. Freeman, 299 Mass. 20, 11 N.E.2d 582 (1937); Kushner v. McGinnis, 289 Mass. 326, 194 N.E. 106 (1935).

In these “baggage check” and “ticket” cases, we have ruled that the “type of document which the patron receives and the circumstances under which he receives it are not such that a person of ordinary intelligence would assume that the ticket limits the proprietor’s liability unless the patron becomes actually aware of that limitation.” Lee v. Allied Sports Assocs., Inc., supra at 549-550.

Therefore, we have [***11] held in those cases that actual notice of the limitation of liability may be a question of fact properly submitted to the jury. This is not such a case. The release at issue here was clearly labeled as such and was filled out and signed by Merav and her father for the purpose of ensuring that she would be permitted to [**744] participate in an ongoing extracurricular activity. These are not circumstances likely to mislead a person of ordinary intelligence as to whether a limitation of liability might be included in the type of document being executed. There is no dispute that Merav and her father had ample opportunity to review and understand the release. Their failure to do so does not avoid its effects as a matter of law. Id. Cormier v. Central Mass. Chapter of the Nat’l Safety Council, supra. Merav further argues that a jury should consider whether the release was signed under duress because, had she refused to sign it, she would not have been allowed to participate in cheerleading. This argument was not made to the motion judge, and is waived. But see Minassian v. Ogden Suffolk Downs, Inc., [*105] 400 Mass. 490, 492, 509 N.E.2d 1190 (1987) (“take it [***12] or leave it” release as condition of voluntary participation enforceable).

b. Public policy. Merav next contends that enforcement of the release against her claims would constitute a gross violation of public policy. This argument encompasses at least three separate public policy contentions: first, that it is contrary to public policy to permit schools to require students to sign exculpatory agreements as a prerequisite to participation in extracurricular school sports; second, that public policy prohibits a parent from contracting away a minor child’s right to sue for a future harm; and third, that the enforcement of this release would undermine the duty of care that public schools owe their students.

In weighing and analyzing Merav’s public policy arguments, we must also consider other important public policies of the Commonwealth implicated in the resolution of this issue, including policies favoring the enforcement of releases, and the encouragement of extracurricular athletic programs for school-aged children.

(1) Releases. Massachusetts law favors the enforcement of releases. Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550 (1965), citing MacFarlane’s Case, 330 Mass. 573, 576, 115 N.E.2d 925 (1953); [***13] Clarke v. Ames, 267 Mass. 44, 47, 165 N.E. 696 (1929). A party may, by agreement, allocate risk and exempt itself from liability that it might subsequently incur as a result of its own negligence. See, e.g., Lee v. Allied Sports Assocs., Inc., supra at 550; Barrett v. Conragan, 302 Mass. 33, 18 N.E.2d 369 (1938); Ortolano v. U-Dryvit Auto Rental Co., 296 Mass. 439, 6 N.E.2d 346 (1937). See also J.W. Smith & H.B. Zobel, Rules Practice § 8.18 (1974). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Schell v. Ford, 270 F.2d 384, 386 (1^st Cir. 1959).

Whether such contracts be called releases, covenants not to sue, or indemnification agreements, they represent “a practice our courts have long found acceptable.” Minassian v. Ogden Suffolk Downs, Inc., supra at 493. See Shea v. Bay State Gas Co., 383 Mass. 218, 223-224, 418 N.E.2d 597 (1981); [***14] Clarke v. Ames, supra at 47.

[*106] The context in which such agreements have been upheld range beyond the purely commercial. In Lee v. Allied Sports Assocs., Inc., supra, we upheld a release signed as a prerequisite to a spectator entering the pit area of an automobile race, and in Cormier v. Central Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 620 N.E.2d 784 (1993), we similarly [**745] upheld a release signed by a beginner rider as a condition of her enrollment in a motorcycle safety class. In both cases, the plaintiffs were subsequently injured by the allegedly negligent acts of the other party to the release. In the Lee case, supra, we concluded that the denial of the defendant’s motion for a directed verdict was error on the basis of the validity of the release. In the Cormier case, supra, we upheld the granting of summary judgment on the same basis, holding that “placing the risk of negligently caused injury on a person as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.” Id. at 289. [***15] There is little that distinguishes the activity in the present case from those in the Lee and the Cormier cases.

Although Merav has suggested that, if the release at issue here is valid, there is nothing to prevent cities or towns from requiring releases for “simply allowing a child to attend school,” such a conclusion does not necessarily follow. We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities), and the enforceability of mandatory releases in such circumstances might well offend public policy. See Cormier v. Central Mass. Chapter of the Nat’l Safety Council, supra at 289 n.1, citing Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 608, 541 N.E.2d 366 (1989) (exacting release of liability for negligence from public employee who was under compulsion to enroll in training course might offend public policy). See also Recent Case, 102 Harv. L. Rev. 729, 734 (1989) (importance of service to public should be paramount factor in deciding whether [***16] to invalidate exculpatory release on public policy grounds). In this case, Merav’s participation in the city’s extracurricular activity of cheerleading was neither compelled nor essential, and we conclude that [*107] the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.

(2) Parent’s waiver of a minor’s claim. Merav contends that a parent cannot waive, compromise, or release a minor child’s cause of action, and that enforcement of such a release against the child would violate public policy. She relies on a series of decisions from other jurisdictions. n7 The city on the other hand relies on a series of cases holding to the contrary. n8 While these cases are instructive and emblematic of the difficulty in balancing [**746] the important interests and policies at stake, we first look to our own law.

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n7 See Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (1958) (release signed by parent waiving child’s future claims violates public policy); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 146, 199 Ill. Dec. 572, 634 N.E.2d 411 (1994) (parent cannot waive, compromise, or release minor child’s cause of action); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979) (release signed by parent before son’s hockey injury void as to child’s cause of action); Childress v. Madison County, 777 S.W.2d 1, 7 (Tenn. Ct. App. 1989) (release signed by mother void as to son’s rights but valid as to mother’s); Scott v. Pacific W. Mountain Resort, 119 Wn. 2d 484, 494, 834 P.2d 6 (1992) (en banc) (preinjury release signed by parent does not bar child’s cause of action). [***17] n8 See Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (1990) (parent may execute release on behalf of minor child); Cooper v. United States Ski Ass’n, 32 P.3d 502, 29 Colo. Law. No. 10 166 (Colo. Ct. App. 2000) (mother’s release of minor child’s claims for negligence valid and enforceable); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (1998) (mother had authority to bind minor child to exculpatory agreement).

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Under our common law, “any contract, except one for necessaries, entered into by an unemancipated minor could be disaffirmed by him before he reached the age of [eighteen] or within a reasonable time thereafter.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 692, 322 N.E.2d 768 (1975). This long-standing principle has been applied to releases executed by a minor as far back as 1292. See 5 S. Williston, Contracts § 9.2, at 5 (4^th ed. 1993), citing Y.B. 20 and 21 Edw. At 318 (1292) (release by minor “would not bar him from suing when he came of age”). While the common-law rule [***18] has been narrowed somewhat by statute, n9 it remains our law that the contract of a minor is generally [*108] voidable when she reaches the age of majority. Merav unequivocally repudiated the release (to the extent it might be deemed a contract executed by her) by filing suit against the city. See G.E.B. v. S.R.W., 422 Mass. 158, 164, 661 N.E.2d 646 (1996) (minor’s filing of suit is direct repudiation of contract not to sue signed by minor). The city concedes that Merav effectively disaffirmed the release, but contends that insofar as the release is signed by the parent and purports to release the school from any claim that might accrue to the minor, it remains valid because the parent can do what the minor cannot.

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n9 See, e.g., G. L. c. 167E, § 10 (student under eighteen years of age admitted to institution of higher learning has full legal capacity to act on her own behalf in contracts and other transactions regarding financing of education); G. L. c. 175, § 128 (certain contracts for life or endowment insurance may not be voided by minor over fifteen years of age); G. L. c. 175, § 113K (minor over sixteen years of age permitted to contract for motor vehicle liability insurance); G. L. c. 112, § 12E (minor over twelve years of age found to be drug dependent may consent to treatment for dependency); G. L. c. 112, § 12F (minor may consent to medical or dental treatment if she meets criteria outlined in statute).

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The purpose of the policy permitting minors to void their contracts is “to afford protection to minors from their own improvidence and want of sound judgment.” Frye v. Yasi, 327 Mass. 724, 728, 101 N.E.2d 128 (1951). This purpose comports with common sense and experience and is not defeated by permitting parents to exercise their own providence and sound judgment on behalf of their minor children. Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions”). See 1 W. Blackstone Commentaries 452 (9^th ed. 1783) (minor’s consent to marriage void unless accompanied by parental consent; one of many means by which parents can protect children “from the snares of artful and designing persons”). Moreover, our law presumes that fit parents act in furtherance of the welfare and best interests of their children, Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-589, 421 N.E.2d 28 (1981); Sayre v. Aisner, 51 Mass. App. Ct. 794, 799 n.8, 748 N.E.2d 1013 (2001), [***20] and with respect to matters relating to their care, custody, and upbringing have a fundamental right to make those decisions for them. See Parham v. J.R., supra at 603 (parents can and must make judgments and decisions regarding risks to their children).

In the instant case, Merav’s father signed the release in his [*109] capacity as parent because he wanted his child to benefit from participating in cheerleading, as she had done for four previous seasons. He made an important family decision cognizant of the risk of physical injury to his [**747] child and the financial risk to the family as a whole. In the circumstance of a voluntary, nonessential activity, we will not disturb this parental judgment.

This comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts. n10

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n10 Our conclusion that parents may execute an enforceable preinjury release on behalf of their minor children is not inconsistent with our policy regarding discretionary court approval of settlement releases signed by minors. See ½ G. L. c. 231, § 140C ½ (allowing judge to approve settlement for damages stemming from personal injury to minor where parties have petitioned for such approval).

This statute applies only to postinjury releases, and the policy considerations underlying it are distinct from those at issue in the preinjury context. A parent asked to sign a preinjury release has no financial motivation to comply and is not subject to the types of conflicts and financial pressures that may arise in the postinjury settlement context, when simultaneously coping with an injured child. Such pressure can create the potential for parental action contrary to the child’s ultimate best interests. In short, in the preinjury context, there is little risk that a parent will mismanage or misappropriate his child’s property. See Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 373, 696 N.E.2d 201 (1998).

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c. The encouragement of athletic activities for minors. Our views with respect to the permissibility of requiring releases as a condition of voluntary participation in extracurricular sports activities, and the enforceability of releases signed by parents on behalf of their children for those purposes, are also consistent with and further the public policy of encouraging athletic programs for the Commonwealth’s youth. This policy is most clearly embodied in statutes that exempt from liability for negligence: nonprofit organizations and volunteer managers and coaches who offer and run sports programs for children under eighteen years of age ( G. L. c. 231, § 85V), and owners of land (including municipalities) who permit the public to use their land for recreational purposes without imposing a fee ( G. L. c. 21, § 17C). See Anderson v. Springfield, 406 Mass. 632, 549 N.E.2d 1127 (1990) (city not liable for injuries to softball player resulting from negligently caused defect in city-owned baseball field).

To hold that releases of the type in question here are [*110] unenforceable would expose public schools, who offer [***22] many of the extracurricular sports opportunities available to children, to financial costs and risks that will inevitably lead to the reduction of those programs. n11 It would also create the anomaly of a minor who participates in a program sponsored and managed by a nonprofit organization not having a cause of action for negligence that she would have had had she participated in the same program sponsored as an extracurricular activity by the local public school. This distinction seems unwarranted, inevitably destructive to school-sponsored programs, and contrary to public interest.

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n11 The fact that G. L. c. 258, § 2, limits the financial exposure of municipalities to $ 100,000 an occurrence (plus defense costs) does not insulate them from the deleterious impact of inherently unquantifiable financial risk.

Public schools are not required by State law to offer voluntary extracurricular sports programs. Compare G. L. c. 71, § 3 (“physical education shall be taught as a required subject in all grades for all students in the public schools . ..” [emphasis added]) with G. L. c. 71, § 47 (cities and towns “may appropriate” money for employment of coaches and for support of extracurricular activities).

Consequently, in times of fiscal constraint, those programs are often the targets of budget reductions. A decision exposing school systems to further financial costs and risk for undertaking such programs cannot help but accelerate their curtailment.

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Merav contends that to enforce the release would convey the message that public school programs can be run negligently, in contravention of the well-established responsibility of schools to protect their students. We disagree. There are many reasons aside from potential tort liability why public schools will continue to take steps to ensure well-run and safe extracurricular programs—not the least of which is their ownership by, and accountability to, the citizens of the cities and towns they serve. Moreover, the Legislature has already made the judgment that the elimination of liability for negligence in nonprofit sports programs is necessary to the encouragement and survival of such programs. It can hardly be contended that the enactment of G. L. c. 231, § 85V, was an endorsement by the Legislature of the negligent operation of nonprofit programs or an act likely to encourage the proliferation of negligence. School extracurricular programs are similarly situated. n12 The enforcement of the release is consistent with the Commonwealth’s policy of [*111] encouraging athletic programs for youth and does not contravene the responsibility that schools have to protect [***24] their students.

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n12 Our holding is not intended to abrogate or qualify the special relationship that exists between a school and its students recognized in prior decisions, but not involving the validity of an exculpatory release required for participation in an extracurricular activity. See, e.g., Whitney v. Worcester, 373 Mass. 208, 366 N.E.2d 1210 (1977) (sight-impaired student injured by defective door during school hours); Alter v. Newton, 35 Mass. App. Ct. 142, 617 N.E.2d 656 (1993) (student hit in eye by lacrosse ball while waiting in school yard for parent).

It is also limited to the claims before us—and those claims concern ordinary negligence. The city specifically disavows any contention that the release here would relieve it from liability for gross negligence or reckless or intentional conduct. See Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 18-19, 687 N.E.2d 1263 (1997), citing Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982) (releases effective against liability for ordinary negligence but substantial outside authority holds same not true for gross negligence). Commentators have readily distinguished the public policy implications of exculpatory releases whose only effect is relief from ordinary negligence from those intended to relieve a party from gross negligence, or reckless or intentional conduct. See Restatement (Second) of Contracts § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”); 6A A. Corbin, Contracts § 1472, at 596-597 (1962) (“such an exemption [from liability] is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence”); W.L. Prosser & W.P. Keeton, Torts § 68, at 484 (5^th ed. 1984) (“such agreements generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross”).

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d. Massachusetts Tort Claims Act. Merav’s reliance on G. L. c. 258, § 2, to support her claim that cities and towns should not be permitted to require or enforce releases regarding their negligent conduct, is misplaced. While the purpose of the Act may be to provide a remedy for persons injured as a result of the negligence of government entities, see Vasys v. Metropolitan Dist. Comm’n, 387 Mass. 51, 55, 438 N.E.2d 836 (1982), it does so by abrogating sovereign immunity only within a narrow statutory framework. The Act does “not create any new theory of liability for a municipality,” Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982), but rather, specifically provides that they are liable “in the same manner and to the same extent as a private individual under like circumstances.” G. L. c. 258, § 2. Outside of the procedural limitations and exceptions contained within the Act, cities and towns are afforded the same defenses as private parties in tort claims. See Dinsky v. Framingham, supra.

[**749] Because releases of liability for ordinary negligence involving private [***26] parties are valid as a general proposition in the Commonwealth, [*112] it is not contrary to the purposes of the Act to allow municipalities to use releases as a precondition for the participation in voluntary, nonessential activities they may sponsor.

e. Consideration. Merav last argues that the release she signed is void because it was not supported by proper consideration. The motion judge properly concluded that the benefit bargained for, in this case Merav’s participation in the cheerleading program, was adequate consideration for the release. See Restatement (Second) of Torts § 496B (1965) (not essential that agreements to assume risk of negligence be for consideration. Consent by participation in activity may be sufficient).

C. Conclusion.

For the reasons set forth above, we conclude that Merav’s father had the authority to bind his minor child to an exculpatory release that was a proper condition of her voluntary participation in extracurricular sports activities offered by the city. Summary judgment for the city that was entered on the basis of the validity of that release is therefore affirmed.

So ordered.

WordPress Tags: Sharon,Newton,Mass,LEXIS,Merav,Supreme,Judicial,Court,Massachusetts,April,June,Prior,History,Middlesex,Civil,action,Superior,Department,November,Martha,Sosman,Leila,Kern,judgment,initiative,Appeals,Disposition,Headnotes,Practice,Answer,Amendment,Motion,Parent,Child,Education,Release,School,Committee,tort,Public,Policy,Contract,Minor,Consideration,Negligence,Contractual,limitation,Claims,Governmental,Counsel,Jeffrey,plaintiff,Richard,Chmielinski,Assistant,Solicitor,defendant,Thomas,Urbelis,Solicitors,Town,Association,Michael,Gillis,John,Andre,Academy,Trial,Attorneys,Leonard,Kesten,Patricia,Municipal,Judges,Present,Barnstable,Marshall,Greaney,Ireland,Spina,Cordy,Opinion,purpose,Commonwealth,Background,North,High,teammate,formation,surgery,injury,Footnotes,squad,studio,team,Count,retention,December,October,discovery,Parental,Consent,Agreement,August,participation,covenant,account,injuries,Schools,Physical,opposition,complaint,discretion,fact,minors,theory,Discussion,allowance,error,omission,waiver,Leahy,Local,State,Employees,Smith,Zobel,Rules,Supp,Coastal,England,Citizens,Fuels,Corp,justice,Foman,Davis,Federal,combination,denials,factors,imminence,Brimfield,Mathis,Elec,Castellucci,States,Guar,Given,Summary,response,enforcement,Gannett,Lowell,contentions,jury,failure,absence,fraud,Sports,Assocs,conclusion,Cormier,Central,Chapter,Council,parents,addition,information,health,insurance,provider,student,accident,option,examination,baggage,ticket,customer,receipt,Brien,Freeman,Kushner,McGinnis,patron,person,intelligence,proprietor,argument,Minassian,Ogden,Suffolk,Downs,violation,students,agreements,prerequisite,arguments,policies,encouragement,Releases,MacFarlane,Case,Clarke,Ames,Barrett,Conragan,Ortolano,Dryvit,Auto,Rental,agents,Schell,Ford,Whether,covenants,Shea,context,spectator,area,automobile,beginner,rider,enrollment,motorcycle,plaintiffs,denial,verdict,basis,Although,cities,towns,attention,utilities,employee,compulsion,Recent,Harv,importance,factor,series,decisions,jurisdictions,Fedor,Mauwehu,Scouts,Conn,Meyer,Naperville,Manner,Doyle,Bowdoin,College,Madison,Tenn,Scott,Pacific,Mountain,Resort,Hohe,Diego,Dist,Rptr,Cooper,Colo,Zivich,Mentor,Soccer,Club,Ohio,Under,Slaney,Westwood,principle,Williston,Contracts,statute,extent,repudiation,institution,transactions,life,endowment,vehicle,drug,treatment,dependency,criteria,protection,improvidence,Frye,Yasi,providence,Parham,concept,presumption,Commentaries,Moreover,furtherance,welfare,Petition,Dispense,Adoption,Sayre,Aisner,custody,judgments,decision,circumstance,approval,settlement,motivation,purposes,youth,statutes,managers,owners,municipalities,Anderson,Springfield,player,opportunities,reduction,distinction,exposure,occurrence,impact,Compare,emphasis,money,employment,constraint,reductions,systems,curtailment,message,contravention,ownership,Legislature,elimination,survival,enactment,endorsement,proliferation,relationship,Whitney,Worcester,door,hours,Alter,ball,yard,contention,Zavras,Capeway,Rovers,Gillespie,Papale,Commentators,implications,relief,Restatement,Second,Corbin,exemption,Prosser,Keeton,Torts,reliance,government,entities,Vasys,Metropolitan,Comm,framework,Dinsky,Framingham,Outside,limitations,exceptions,proposition,precondition,curricular,pyramid,four,spotters,three,third,unenforceable,neither,supra,enforceable,exculpatory,behalf,preinjury,comports,postinjury

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem, Plaintiff-Appellant, v. Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company, Defendants-Respondents.

No. 03-2487-FT

Supreme Court of Wisconsin

2005 WI 4; 2005 Wisc. LEXIS 2

October 26, 2004, Submitted on Briefs

January 19, 2005, Opinion Filed

Prior History: [**1] Appeal from an order of the Circuit court for Dane County, Michael N. Nowakowski, Judge. L.C. No. 02 CV 3149.

Disposition: Reversed and remanded.

Counsel: For the plaintiff-appellant there were briefs by J. Michael Riley and Axley Brynelson, LLP, Madison, and oral argument by John M. Riley.

For the defendants-respondents there was a brief by Bradway A. Liddle, Sarah A. Zylstra and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Sarah A. Zylstra.

An amicus curiae brief was filed by Patricia Sommer and Otjen, Van Ert, Lieb & Weir, S.C., Madison, on behalf of Wisconsin Insurance Alliance.

Judges: N. Patrick Crooks, J. Patience Drake Roggensack, J. (concurring). Jon P.

Wilcox, J. (dissenting).

Opinion By: N. Patrick Crooks

Opinion:

[*P1] N. Patrick Crooks, J. This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-2002). n1 Benjamin Atkins (Atkins) appealed from an order of the circuit court, which granted summary judgment in favor of Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company (Swimwest). Atkins filed suit for [**2] the wrongful death of his mother, Dr. Charis Wilson (Wilson), who drowned n2 while using Swimwest’s lap pool. The circuit court held that the guest registration and waiver form signed by Wilson constituted a valid exculpatory provision, releasing Swimwest from liability.

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n1 Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § (Rule) 809.61 states, in relevant part: “The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court’s own motion.”

n2 Wilson was found unconscious at the bottom of Swimwest’s lap pool. Swimwest employees pulled her from the pool and immediately administered CPR. Wilson was then transported by ambulance to University Hospital, where she died the next day, May 4, 2001. An autopsy revealed that death was caused by an Anoxic Brain Injury, the result of drowning.

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[*P2] We conclude that the exculpatory [**3] language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

I

[*P3] Swimwest is mainly an instructional swimming facility located in Madison, Wisconsin. It is equipped with a lap pool that is open to both members and visitors. On May 3, 2001, n3 Wilson, a local physician, visited Swimwest as part of a physical therapy and rehabilitation program. Upon [**4] entering the facility, Wilson was assisted at the front desk by Swimwest employee Arika Kleinert (Kleinert). Kleinert informed Wilson that because she was not a member of Swimwest, she was required to fill out a guest registration card and pay a fee before swimming.

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n3 The actual form signed by Wilson is dated May 2, 2001. The complaint, coroner’s report, and Arika Kleinert’s affidavit all indicate, however, that Wilson signed the form and was found unconscious in the pool on May 3, 2001. The parties have presumed that the date on the form was incorrect.

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[*P4] Kleinert presented Wilson with the guest registration card. The form was preprinted on a five and one-half inch by five and one-half inch card that also contained a standardized “Waiver Release Statement.” This statement appeared below the “Guest Registration,” which requested the visitor’s name, address, phone, reason for visit, and interest in membership. The entire card was printed in capital letters with the same size, font, and color. The waiver [**5] language printed on the card, following the registration information requested, is reproduced below:

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

[*P5] The guest registration and waiver card had just one signature and date line that appeared at the end of the “Guest Registration” and the “Waiver Release Statement.” Wilson completed the requested “Guest Registration” portion and signed at the bottom of the “Waiver Release Statement” without asking Kleinert any questions.

[*P6] Before entering the pool, Wilson told Dan Kittelson, Aquatic Director of Swimwest, that she did not require assistance getting into the water. n4 She was observed entering the pool by Karen Kittelson, part owner of Swimwest, and the lifeguard on duty. Karen Kittelson testified that she saw Wilson swimming the sidestroke up and down the length of the pool.

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n4 It was established in Atkins’ affidavit that Wilson knew how to swim prior to May 3, 2001.

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[*P7] Soon after Wilson began swimming, another Swimwest employee, Elizabeth Proepper (Proepper), spotted Wilson lying motionless underwater near the bottom of the pool. Proepper alerted Karen Kittelson, who pulled Wilson from the pool and administered CPR. Wilson died at the hospital on May 4, 2001. An autopsy was performed, and drowning was listed as the official cause of death on the coroner’s report.

[*P8] Atkins, a minor and Wilson’s only child, filed a wrongful death action against Swimwest through his guardian ad litem. Atkins’ complaint alleged that Swimwest was negligent in the operation of the pool facility, particularly in the management and observation of the pool area, that procedures to safeguard against the risk of drowning were not followed, and that negligence of its employees caused Wilson’s death.

[*P9] The Dane County Circuit Court, the Honorable Michael N. Nowakowski presiding, granted Swimwest’s summary judgment motion and dismissed Atkins’ wrongful death action. The circuit court concluded that the form Wilson signed was sufficient to absolve Swimwest of any liability for Wilson’s death. The court reached its conclusion after considering whether [**7] the exculpatory clause was in contravention of public policy.

[*P10] Atkins appealed the circuit court decision. The court of appeals, Judges Charles P. Dykman, Margaret J. Vergeront, and Paul B. Higginbotham, certified the appeal to this court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.

II

[*P11] This case involves review of whether the circuit court appropriately granted Swimwest’s motion for summary judgment. In reviewing the grant of summary judgment, we apply the same methodology used by the circuit court in deciding the motion. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996); see Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994). Although the standard for our review is de novo, we benefit from the analysis of the circuit court.Yahnke v. Carson, 2000 WI 74, P10, 236 Wis. 2d 257, 613 N.W.2d 102. Wisconsin Stat. § 802.08(2) states, in relevant part, that the circuit court may appropriately grant summary judgment if evidence shows “that there is no genuine issue as to any material [**8] fact and that the moving party is entitled to a judgment as a matter of law.”

[*P12] This case turns on the interpretation of Swimwest’s guest registration and waiver form, and whether it relieves Swimwest of liability for harm caused by its negligence. Merten v. Nathan, 108 Wis. 2d 205, 210, 321 N.W.2d 173 (1982). Wisconsin case law does not favor such agreements. Richards, 181 Wis. 2d at 1015; Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991). While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81; Merten, 108 Wis. 2d at 210-11.

[*P13] Generally, exculpatory clauses have been analyzed on principles of contract law, see Dobratz, 161 Wis. 2d 502; Arnold v. Shawano County Agr. Soc’y, 111 Wis. 2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987), and on public policy grounds. See Yauger, 206 Wis. 2d 76; [**9] Richards, 181 Wis. 2d 1007; Merten, 108 Wis. 2d 205; see generally, Restatement (Second) of Contracts, § 195 (1981). n5 However, lately the contractual analysis has not been emphasized, as many of the factors previously reviewed on a contractual basis were reached in the more recent cases, like Richards and Yauger, on public policy grounds. Yauger, 206 Wis. 2d at 86. For a contractual inquiry, we need only “look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of [the] agreement . . .” Arnold, 111 Wis. 2d at 211, to determine if it was broad enough to cover the activity at issue. If not, the analysis ends and the contract should be determined to be unenforceable in regard to such activity. If the language of the contract does cover the activity, as it does here, we then proceed to an analysis on public policy, which remains the “germane analysis” for exculpatory clauses. Yauger, 206 Wis. 2d at 86.

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n5 Restatement (Second) of Contracts § 195 states, in relevant part:

(1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.

(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if:

(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

(c) the other party is similarly a member of a class protected against the class to which the first party belongs.

(3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying that liability.

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[*P14] We generally define public policy as “’that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.’” Merten, 108 Wis. 2d at 213 (quoting Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168, 172 (1955)). In such a review of exculpatory clauses, this court “attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement.” Richards, 181 Wis. 2d at 1016. n6 For guidance on the application of these public policy principles, we examine our two most recent cases considering exculpatory contracts in Wisconsin.

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n6 The basic principles of contract and tort law as applied to exculpatory provisions were made clear in Richards v. Richards, 181 Wis. 2d 1007, 1016, 513 N.W.2d 118 (1994):

The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the “prophylactic” purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Id. (citing Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173).

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[*P15] In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” Yauger, 206 Wis. 2d at 84. Yauger involved a wrongful death action against the owner of a ski hill area. The claim, brought by the parents of a girl who fatally collided with the concrete base of a chair lift tower while skiing, alleged that the defendant negligently failed to pad the lift tower. The defendant filed for summary judgment, relying on the exculpatory provision contained in the family ski pass signed by the girl ‘s father. The waiver read, in part: “’There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.’” Id. at 79.

[*P16] In applying the two factors, the court in Yauger held that the release was void as [**12] against public policy. First, this court held that the release was not clear because it failed to include language “expressly indicating Michael Yauger’s intent to release Hidden Valley from its own negligence.” Id. at 84. Without any mention of the word “negligence,” and the ambiguity of the phrase “inherent risks of skiing,” the court held that Yauger was not adequately informed of the rights he was waiving. In regard to the second factor, this court held that the form, in its entirety, did not fully communicate to Yauger its nature and significance, because it served the dual purposes of an application for a season pass and a release of liability. Id. at 87. Furthermore, the waiver was not conspicuous. It was one of five paragraphs on the form and did not require a separate signature. Id.

[*P17] In Richards, the court adopted a slightly different approach to determining the enforceability of exculpatory contracts. Richards involved the wife of a truck driver signing a “Passenger Authorization” release form issued by her husband’s employer. The form claimed to waive liability for “intentional, reckless, and negligent conduct.” She [**13] brought suit to recover for injuries she suffered while riding in her husband’s truck as a passenger. We used a combination of factors to determine that the exculpatory language was contrary to public policy. Richards, 181 Wis. 2d at 1017. The first factor was that the contract served two purposes, neither of which was clearly identified or distinguished. Second, the court held that the release was broad and all-inclusive. Finally, there was little or no opportunity to negotiate or bargain over the contract. Id.at 1011.

[*P18] Applying the factors from Yauger and Richards, we hold that Swimwest ‘s exculpatory clause is in violation of public policy. n7 First, this exculpatory waiver, which uses the word “fault,” is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86; Richards, 181 Wis. 2d at 1017-18. Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver’s nature and significance. Yauger, 206 Wis. 2d at 86-87. Third, [**14] there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019. n8 Under this framework, the waiver in question is unenforceable as against public policy.

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n7 We acknowledge that Yauger v. Skiing Enters., Inc.,, 206 Wis. 2d 76, 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat’l Tractor Pullers Ass’n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, “the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement.” Id. On the other hand, in Richards, the court stated that “none of these factors alone would necessarily have warranted invalidation of the exculpatory contract.” Richards, 181 Wis. 2d at 1020; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause. [**15]

n8 According to the court in Yauger, it did not address this factor from Richards because both of the factors it had already addressed were sufficient to void the exculpatory clause in question. Yauger, 206 Wis. 2d 76, 86 n.1.

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[*P19] In addressing the first factor, we find the waiver’s broadness raises questions about its meaning and demonstrates its one-sidedness. Id. At 1018. The language chosen by Swimwest is not clear and could potentially bar any claim arising under any scenario. The waiver begins: “I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT. . . .” This language never makes clear what type of acts the word “fault” encompasses. Although Swimwest alleges that negligence is synonymous with fault, we find that fault is susceptible to a broader interpretation. Fault is currently defined as “an error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement.” Black’s Law Dictionary 623 (7^th ed. 1999). This definition is broad enough to cover [**16] a reckless or an intentional act. A waiver of liability for an intentional act would clearly place the exculpatory clause in violation of public policy. Merten, 108 Wis. 2d at 212; Restatement (Second) of Contracts § 195(1) (1981). We again emphasize that exculpatory language must be strictly construed against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81.

[*P20] If Swimwest wanted to make clear that the signer is releasing it from negligent acts, it could have included the word “negligence” in the waiver. While this court has never specifically required exculpatory clauses to include the word “negligence,” we have stated that “we consider that it would be very helpful for such contracts to set forth in clear and express terms that the party signing it is releasing others for their negligent acts. . . .” Dobratz, 161 Wis. 2d at 525.

[*P21] Likewise, the broadness of the exculpatory language makes it difficult to ascertain exactly what was within Wilson’s or Swimwest’s contemplation. We have consistently held that “only if it is apparent that the parties, in light of all [**17] the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” Id. at 520 (citing Arnold, 111 Wis. 2d at 213). For example, in Arnold, we voided an exculpatory clause, because the accident that occurred was not within the contemplation of the parties when they signed the agreement. The case involved a waiver signed by a racecar driver, whereby he agreed not to hold liable the race promoter, the racing association, the track operator, the landowner, and any other driver in the race for injuries arising from the race. The plaintiff was severely injured after he crashed his car, and the rescue personnel sprayed chemicals into his burning car. The fumes that the spray created were toxic and caused the driver severe brain damage. In rendering the exculpatory language unenforceable, we held that “an issue of material fact exists as to whether the risk of negligent rescue operations was within the contemplation of the parties at the time the exculpatory contract was executed.” Arnold, 111 Wis. 2d at 212.

[*P22] Like the plaintiff in Arnold, Wilson likely would not have contemplated [**18] drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

[*P23] Here, the guest registration and waiver form does not provide adequate notice of the waiver’s nature and significance. See Yauger, 206 Wis. 2d at 84. In this case, the form provided by Swimwest served two purposes. It was both a “Guest Registration” application and a “Waiver Release Statement.” Just as in Richards and Yauger, the exculpatory language appeared to be part of, or a requirement for, a larger registration form. In Yauger, for example, the plaintiff signed a one-page document that served as an application for a season ski pass and also contained a release of liability. Yauger, 206 Wis. 2d at 87. The waiver in this case could have been a separate document, providing Wilson with more adequate notice of what she was signing. Also, a separate signature line could have been provided, but was not. “Identifying and distinguishing clearly between those two contractual [**19] arrangements could have provided important protection against a signatory’s inadvertent agreement to the release. “ Richards, 181 Wis. 2d at 1017.

[*P24] Another problem with the form was that there was nothing conspicuous about the paragraph containing the “Waiver Release Statement.” See Yauger, 206 Wis. 2d at 87. “The form, looked at in its entirety, must be such that a reviewing court can say with certainty that the signer was fully aware of the nature and the significance of the document being signed.” Id. at 88. Here, the entire form was printed on one card, with the same size, font, and color. The fact that the release statement is in capital letters is irrelevant since all of the words on the guest registration were also in capital letters. Furthermore, the only place to sign the form was at the very end. This supports the conclusion that the waiver was not distinguishable enough.

[*P25] We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity [**20] to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis. 2d at 1019.

[*P26] We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer’s truck. The court invalidated the contract, in part, because she “simply had to adhere to the terms of the written form.” Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest. n9 We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy. [**21]

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n9 In Karen Kittelson’s deposition, she states: “You have to pay the fee and sign the waiver. You are not allowed to use the facility unless you sign the waiver.”

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[*P27] All of the factors discussed lead us to conclude that the exculpatory clause in the Swimwest form violates public policy, and, therefore, is unenforceable.

III

[*P28] The final issue we address is whether Atkins is permitted to bring a wrongful death claim against Swimwest. Under Wisconsin law, a wrongful death action may be brought under such circumstances “as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. . . .” Wis. Stat. § 895.03. n10

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n10 Wisconsin Stat. § 895.03 states, in relevant part:

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

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[*P29] As the son of Wilson, Atkins was a proper claimant for a wrongful death claim against Swimwest, pursuant to Wis. Stat. § 895.04. n11 However, because the circuit court determined that Wilson would have been barred from bringing suit, the court consequently determined that Atkins was also barred. While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

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n11 Wisconsin Stat. § 895.04(1) states, in relevant part: “An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.”

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IV

[*P30] In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

By the Court.-The decision of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Concur by: Patience Drake Roggensack

Concur:

[*P31] Patience Drake Roggensack, J. (concurring). [**24] While I agree with the mandate to reverse and remand this matter, I write separately for two reasons: (1) because the court paints with too broad a brush when it strikes down the waiver due to its conclusion that Swimwest Family Fitness Center did not give Charis Wilson the opportunity to bargain on the terms of the release, without explaining that while the opportunity to bargain is desirable, it is not a separate component that may be dispositive of a waiver’s validity, and (2) because whether Wilson contemplated the possibility of her own death when she signed the waiver of liability is a question of fact that we should not decide on appeal.

[*P32] In the absence of legislation that prohibits them, waivers of liability, also known as exculpatory contracts, generally have been upheld. Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983). However, exculpatory contracts, such as the one Wilson signed to obtain the opportunity to swim in the Swimwest pool, are not favored in the law. Id.

[*P33] When an exculpatory contract is reviewed by a court upon a claim that the contract violates public policy, there is a tension [**25] that is always present. On one hand, the court must consider the right to contract freely in the management of one’s affairs without government interference, and on the other hand, the court must consider that the shifting of responsibility for a tortfeasor’s negligent acts may tend to permit more negligent conduct. Id. at 209, n.2. We have balanced this tension by consistently requiring that exculpatory contracts contain two components in order to survive a public policy challenge: (1) a description that “clearly, unambiguously, and unmistakably inform[s the signer] of the rights he [or she is] waiving,” Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 86, 557 N.W.2d 60 (1996), and (2) a description that “clearly and unequivocally communicates to the signer the nature and significance of the document being signed.” Id. at 86-87. In regard to these components, releases that serve two purposes and those that are not conspicuously labeled have been held to be insufficient to draw the signer’s attention to the fact that he is waiving liability for other parties’ negligence, as well as his own. Richards v. Richards, 181 Wis. 2d 1007, 1017, 513 N.W.2d 118 (1994). [**26] And a release that is so broad as to be interpreted to shift liability for a tortfeasor’s conduct under all possible circumstances, including reckless and intentional conduct, and for all possible injuries, catastrophic as well as minor, will not be upheld. Id. at 1017-18.

[*P34] In Richards, we also identified a third consideration that may be examined when exculpatory contracts are reviewed: Whether the injured party has had an opportunity to bargain in regard to the breadth of the release. Id. At 1019. However, contrary to our discussion of the two components set out above, which previous cases had evaluated, we offered no citation to precedent that would establish that the lack of an opportunity to bargain is a component necessary to a valid exculpatory contract. Instead, we linked the lack of an opportunity to bargain to the component requiring releases to clearly state the circumstances and scope of injuries contemplated in order to inform the signer of the rights that he or she is waiving. Id. at 1019-20.

[*P35] In a more recent decision where we invalidated a waiver because it “failed to clearly, unambiguously, [**27] and unmistakably inform [the signer] of the rights he was waiving,” Yauger, 206 Wis. 2d at 86, and failed to “clearly and unequivocally communicate to the signer the nature and significance of the document being signed,” id. at 86-87, we also explained:

We need not address the third ground articulated in Richards, i.e., standardized agreement which offers little or no opportunity for negotiation or free and voluntary bargaining, inasmuch as either of the above principles was sufficient to void this contract.

Id. at 87 n.1. In so explaining that a lack of either of the two necessary components set out at pages 86-87 of our decision was sufficient to set aside an exculpatory contract, we chose not to establish as a third and necessary component of a public policy analysis a requirement that there be an opportunity to bargain on the terms of the release. Rather, the lack of an opportunity to bargain was a fact that a court could consider in evaluating the totality of the circumstances surrounding the execution of a waiver.

[*P36] It is against this background that the majority opinion strikes down the contract [**28] between Wilson and Swimwest, while concluding that one of the infirmities leading to invalidation is that Wilson was not given an opportunity to bargain about the terms of the release. Majority op., P18. It also opines that, “because all of the factors listed in [earlier] cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.” Id., P18 n.7. In so doing, it adds the lack of an opportunity to bargain as a component of the public policy analysis, rather as reasoning used to determine whether the release was overly broad, as we employed it in Richards. It also implies that the lack of an opportunity to bargain could be sufficient to invalidate a release when it asserts, “The form itself must provide an opportunity to bargain.” Majority op., P25. This is an unnecessary broadening of the law that heretofore has set the framework for the analysis of an exculpatory contract on public policy grounds.

[*P37] My concern may seem like a minor matter, but it is very important in a practical sense. For example, the reception desk of a recreational facility is not always staffed by the owner of the facility, [**29] but rather, it may be staffed by an employee, as was the case here. It would be unrealistic to require that an employee be authorized to “bargain” about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility. Additionally, what give and take has to occur in order that there be an actual opportunity to bargain? What if a potential swimmer does not want to waive any potential claims for liability, but the owner is able to afford insurance only for catastrophic injuries, does the owner have the right to say that the person cannot swim in his pool? Those are only a few of the questions that could arise. Accordingly, I would not employ the opportunity to bargain in any way other than in an attempt to determine if the language in the release described the circumstances for which potential liability claims were being waived.

[*P38] Additionally, in holding that the opportunity to bargain is a component of a contractual waiver, the court has effectively removed the ability of most businesses that operate paid recreational facilities to limit any type of liability by contract. In my view, this will result in an increase in lawsuits [**30] and in fewer swimming and other paid recreational facilities for Wisconsin citizens to enjoy, a result that does not further the public good.

[*P39] Exculpatory contracts may be invalidated on a contractual basis, as well as on a public policy basis, if the injury that occurred was not within the contemplation of the parties when the agreement was signed. Arnold, 111 Wis. 2d at 211. As we have explained, “Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed.” Id. We have also explained that the determination of what risks the parties to the contract intended to include in the release are questions of fact for the jury. Id. at 212.

[*P40] An overly broad and generally stated release that may prevent the formation of a valid contract because there was no meeting of the minds by the contracting parties presents a question similar to that presented by a failure to establish the components necessary to a public policy analysis. However, under a contract analysis, the question presents as a fact question, unless the facts are undisputed [**31] and capable of only one interpretation, see Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989), and in a public policy analysis the question presents as a question of law, Richards, 181 Wis. 2d at 1011. The foundations are so similar that we have cited to cases that were decided under a contract-type analysis as support for a decision based on public policy. See, e.g., id. at 1015-16 (a policy-based decision, citing Dobratz v. Thomson, 161 Wis. 2d 502, 520, 468 N.W.2d 654 (1991), a contract-based decision).

[*P41] Here, the contract-formation question presented is whether Wilson contemplated the possibility of her own death when she signed the release. The record provides that she was a swimmer and that the part of the pool in which she was swimming was only about four feet deep. Therefore, if she tired of swimming, all she had to do to keep from sinking below the water’s surface was to stand up. Additionally, statements in the coroner’s report included in the record, which repeated findings from the autopsy, relate that although Wilson’s cause of death is listed [**32] as “drowning,” she did not die from the aspiration of water into her lungs, as one would expect when breathing continues after a person is submerged under water. The physician who conducted the autopsy labeled this phenomenon a “dry drowning.” Although he did not assign any specific finding, such as a heart attack, as the cause of Wilson’s failing to breathe, several possibilities were mentioned. Accordingly, there may have been medical circumstances that contributed to Wilson’s death that had nothing to do with her being submerged in a swimming pool when she was found unconscious. This presents the court with material factual questions about what risks Wilson contemplated when she signed the release. In my view, there must first be a finding of what caused Wilson’s death before a court can evaluate whether she could have agreed to waive that cause. This cannot be decided on summary judgment.

[*P42] Furthermore, the majority opinion does not decide that as a matter of law Wilson could not have contemplated the possibility of her own death when she signed the release. Therefore, I would send the case back to the circuit court for determinations of what caused Wilson to stop breathing [**33] and whether Wilson and Swimwest intended the release to cover that catastrophic event. In my view, until it is known why Wilson stopped breathing, it will not be possible to determine whether she contemplated that event when she signed the waiver of liability. If the injury-causing event is found to be one that Wilson did not contemplate, the waiver she signed will have no effect on liability for her death.

[*P43] For the reasons set forth above, I respectfully concur.

DISSENTBY: JON P. WILCOX

DISSENT:

[*P44] JON P. WILCOX, J. (dissenting). I dissent. While I certainly do not believe that all exculpatory agreements should be upheld, the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin. The majority concludes that the agreement in this case is unenforceable as against public policy for three reasons: 1) the agreement is overly broad; 2) the agreement serves two purposes; and 3) there was no opportunity for the signer to bargain or negotiate over the exculpatory language. Majority op., P18. These factors originate from this court’s decision in Richards v. Richards, 181 Wis. 2d 1007, 1017-19, 513 N.W.2d 118 (1994). [**34] I disagree with the majority’s application of factors one and two and while I am bound to accept the legitimacy of the third factor, I question the manner in which the third factor is applied in this case. Further, the majority fails to articulate a clear test as to what types of exculpatory agreements are enforceable in this state. The majority applies the above three factors in such a fashion so as to leave little possibility that any exculpatory agreement could be enforceable in this state.

[*P45] The law governing the enforceability of exculpatory agreements in Wisconsin has been anything but consistent and this court has, through its various articulations of standards applicable to such agreements, failed to ever adhere to a consistent test for determining their validity. While parties wishing to execute such agreements certainly have a plethora of cases explaining when such agreements are not enforceable, our jurisprudence has not provided a beacon for litigants to successfully navigate the rocky waters of this area of the law.

[*P46] The last time this court had the opportunity to examine the validity of exculpatory agreements in Wisconsin, we noted that our previous [**35] cases had used a variety of tests to evaluate the legitimacy of such agreements. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81-83, 557 N.W.2d 60 (1996). We explained that although our past cases had not adhered to a single test, they all had a single common thread tying them together: “these cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving.” Id. at 81. After analyzing our prior jurisprudence, including Richards, this court distilled a two-part test governing the legitimacy of exculpatory agreements:

While the law grudgingly accepts the proposition that people may contract away their liability right to recovery for negligently caused injuries, the document must clearly, unambiguously, and unmistakably express this intention. Furthermore, the document when looked at in its entirety must clearly and unequivocally communicate the nature and significance of the waiver.

Id. at 88-89. The majority in this case reverts back to the test used in Richards while ignoring the lessons of Yauger.

[*P47] Before analyzing [**36] the exculpatory agreement, it is important to set forth precisely the nature and contents of the agreement and consider the form on which it appears as a whole. n12 The agreement in question is contained on an index card that is five and one-half inches by five and one-half inches.

The card reads:

GUEST REGISTRATION

NAME__________________________________________________

ADDRESS_______________________________________________

CITY____________________________STATE_________________

ZIP______________________HOME PHONE___________________

REASON FOR VISIT______________________________________

HOW DID YOU HEAR OF SWIMWEST?_________________________

I WOULD LIKE MEMBERSHIP INFORMATION?

YES NO DATE_________________________

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILIY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS. SIGNED DATE

That is the entirety of the agreement at question in this case.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

n12 A copy of the agreement is attached as an exhibit at the end of this dissent.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [**37]

[*P48] The first reason the majority provides for striking down the exculpatory agreement contained on this card is: “this exculpatory waiver, which uses the word ‘fault,’ is overly broad and all-inclusive.” Majority op., P18. The majority reasons that the language is ambiguous, could potentially cover a variety of claims, does not include the word “negligence,” and states that it is unclear whether the risk of drowning was within the signer’s contemplation. Majority op., PP19-22.

[*P49] “Fault,” as understood by a layperson, is defined as “[a] mistake; an error” or “responsibility for a mistake or an offense; culpability.” The American Heritage Dictionary of the English Language 665 (3d ed. 1992). Thus, the clear meaning of the first clause in the waiver is that the signer agrees to assume all liability for herself, without regard to who is responsible for any mistake leading to an injury. This language plainly covers negligent conduct. The fact that the legal definition of “fault” covers reckless and intentional acts, majority op., P19, is not dispositive. As the majority correctly indicates, waivers may not be enforced to prevent liability for reckless or intentional [**38] conduct. Id. However, neither reckless nor intentional conduct is at issue in this case. The fact that the waiver may be unenforceable as to other tortious acts is not germane; the relevant inquiry is whether “the exculpatory clause . . . fails to disclose to the signers exactly what rights they were waiving[,]” and whether the agreement unambiguously and unmistakably covers the tortious act at issue. Yauger, 206 Wis. 2d at 81, 86.

[*P50] When read in context of the remaining language of the waiver release statement, the meaning of the first sentence, containing the word “fault,” becomes even clearer. See Folkman v. Quamme, 2003 WI 116, P28 n.11, P29, 264 Wis. 2d 617, 665 N.W.2d 857 (words and phrases of a contract are to be read in context of the contract’s other language in determining ambiguity). The second sentence of the waiver provides: “I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER.” Thus, when the first two sentences of the waiver are read together in context, an ordinary reader would understand that she [**39] is agreeing to hold Swimwest harmless for any injuries she suffers while at Swimwest that are due to mistakes or errors for which Swimwest is responsible. In other words, a layperson would understand that the waiver applies to any negligent acts of Swimwest or its employees.

[*P51] However, the majority argues that the decedent would not have contemplated the injury that occurred, majority op., P22, and focuses on the fact that the agreement does not contain the word “negligence.” Majority op., P20. The decedent in this case went to a facility called “Swimwest” in order to swim laps as part of her physical therapy. Majority op., P3. She took her time to read the waiver and then signed it. Id., PP5, 25. Yet, the majority somehow concludes that the decedent did not contemplate the risk of drowning. Regardless of whatever other activities the waiver may or may not cover, it is almost inconceivable that a reasonable person would not understand that, at a minimum, a waiver at an aquatic facility would cover the risk of drowning. What else would such a waiver cover if not the risk of drowning?

[*P52] Must a business list in the waiver each and every conceivable form [**40] of negligence that may result in injury to a patron? The majority opinion would seem to so indicate. Majority op., P22 (“Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty.”). Listing the myriad of ways in which the proprietor or its agents could be negligent would be unduly burdensome to a business and would necessitate a waiver that is much more than one page in length. Such a waiver, in addition to being quite lengthy, would certainly not be easy to read or understand.

[*P53] In Yauger, this court cited with approval guidelines originally developed for the Uniform Commercial Code that govern warranty disclaimers. Yauger, 206 Wis. 2d at 87 n.2. One of the guidelines is that “the language of the negligence waiver should be readable. . . . and should not be written in legal jargon.” Id. (quoting Stephanie J. Greer & Hurlie H. Collier, The Conspicuousness Requirement: Litigating and Drafting Contractual Indemnity Provisions in Texas After Dresser Industries, Inc. v. Page Petroleum, Inc., 35 S. Tex. L. Rev. 243, 265-70, Apr. 1994). By focusing on the absence of a legal term of art in the [**41] waiver—“negligence”—and the fact that the waiver did not precisely mention the exact negligent act leading to injury in this case, the majority’s rationale runs afoul of the principle that waivers should be easy to read and should not contain legal jargon.

[*P54] Next, the majority concludes that the waiver does not provide “adequate notice of the waiver’s nature and significance” because it serves two purposes. Majority op., P23. The majority states that as in Richards and Yauger, the exculpatory language here is part of a larger registration form. Majority op., P23. However, the waiver in this case is part of a simple five and one-half inch by five and one-half inch index card. The only part of the card containing contiguous complete sentences is the waiver. The remainder of the form is comprised of mere blank lines for the reader to fill in his or her contact information.

[*P55] Thus, the waiver is the only part of the form for a patron to read. The form of the waiver in this case stands in stark contrast to the waiver in Yauger, which was “one paragraph in a form containing five separate paragraphs” that did not stand out from the other language. [**42] Yauger, 206 Wis. 2d at 87. Here, the exculpatory language is the only language on the form to be read. This is not a case where the exculpatory language is located in fine print at the end of a multi-page document or even a case where the waiver is located in the midst of several paragraphs on a single page form. Aside from the blanks for contact information, the waiver is the form.

[*P56] While the top portion of the card does contain blanks for the signer to supply his or her contact information, such information would seem to be a necessary part of the waiver itself, as if injury did occur, it seems logical that the facility would be in need of the injured patron’s contact information. The fact that the top portion of the card is entitled “GUEST REGISTRATION” does not somehow alter the inherent nature of the form. Indeed, one of the guidelines cited in Yauger is that the waiver should be separately labeled to distinguish it from other parts of the agreement. Yauger, 206 Wis. 2d at 87 n.2.

[*P57] The majority also stresses that there is not a separate signature line for the waiver. Majority op., P23. However, the signature [**43] line on the form is located directly under the exculpatory language, unlike the waiver in Richards, 181 Wis. 2d at 1013. One has to wonder why there would need to be a separate signature line under the blank lines in the top portion of the form.

[*P58] The exculpatory language in this case satisfies the guidelines cited in Yauger, 206 Wis. 2d at 87 n.2. The waiver is conspicuous, as it is the only “paragraph” on the form. The waiver is set off from the remainder of the form in a separately titled section. The waiver is easy to locate. The waiver appears directly above a signature line and the waiver is the only portion of the document requiring a signature. The heading before the waiver is not misleading. The waiver itself is written in plain, easy to read language and does not contain an abundance of legal jargon. The waiver is written in large print. In other words, there is no doubt that the waiver is conspicuous and informs the signer of its nature and significance.

[*P59] Yet, the majority concludes that the waiver “was not distinguishable enough.” Majority op., P24. Apparently, the waiver would have been distinguishable if it appeared [**44] on a separate card, or if the form was multicolored and had but one more signature line, or if Swimwest had not utilized capital letters when asking for contact information. Id., PP23-24. This type of analysis elevates form over substance and fails to consider the form on which the exculpatory clause appears as whole.

[*P60] The majority states that it is clarifying the law in Wisconsin concerning exculpatory clauses. Majority op., P10. However, its application of these first two factors has done just the opposite. In Yauger we stated that a waiver appearing on a form with other language should be conspicuously labeled, set apart, and should stand out from the rest of the form. Yauger, 206 Wis. 2d at 87 & n.2. Here, this was done. Yet, the majority uses the very fact that the “Waiver Release Statement” is labeled separately from the “Guest Registration” portion to conclude that the form serves two purposes and thus does not provide adequate notice of the significance and nature of the waiver. Majority op., P23. In Yauger, we suggested that a waiver should be easy to read and should not be written in legalese. Yauger, 206 Wis. 2d at 87 & n.2. [**45] Yet, the majority faults Swimwest for not utilizing a legal term of art—“negligence”—in its waiver, and for not listing the precise act of negligence that allegedly occurred in this case. Majority op., PP20, 22.

[*P61] Further, as close reading of Yauger indicates, a document “serving two purposes” is not in and of itself questionable. Rather, the concern arises that the signer may not be aware of the nature and significance of the waiver when a document serves two purposes and the waiver is not conspicuous. Yauger, 206 Wis. 2d at 86-88. This concern is not present here because the waiver is conspicuous and, read in context, clearly indicates what is being waived. Thus, the fact that the form on which it appears arguably serves two purposes should not be dispositive.

[*P62] Finally, the majority concludes that the waiver is not valid because “there was no opportunity for Wilson to bargain over the exculpatory language[.] “ Majority op., P25. This “bargaining” requirement originated in Richards, 181 Wis. 2d at 1019-20, and was not based on any existing case law. The “bargaining” requirement was not utilized in Yauger. The dissent [**46] in Richards, which I joined, indicated that this requirement was not based on existing law and discussed the inherent problems with such a requirement. Richards, 181 Wis. 2d at 1035-43 (Day, J., dissenting). In particular, the dissent in Richards queried:

What does it mean to “negotiate” in this context, and how would [a] company ensure that the negotiations were “equal”? Are we to assess the competency of [the plaintiff] to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? . . . Or is it suggested that the company must appoint someone to help [the plaintiff] draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in “negotiations”? And what if, despite very skilled and fair negotiations on both sides, [the plaintiff] nevertheless agrees to accept the full release.

Richards, 181 Wis. 2d at 1041 (Day, J., dissenting).

[*P63] It is entirely impractical to require “bargaining” in this context. Almost all releases are printed on standardized forms and are a condition [**47] precedent to the use of recreational facilities. Such releases are utilized by aquatic facilities, athletic clubs, ski resorts, canoeing and rafting outfits, and other high-risk ventures such as skydiving and bungee jumping. Many of these businesses are small firms whose continued existence is based on high customer volume. Must the owner of such business, or other person with the authority to negotiate, be present at the desk of such facility during all hours of operation? Must the proprietor employ a full-time attorney whose duties include negotiating with every person in the long line of skiers waiting to brave the slopes? These businesses would grind to a halt under such practices or, at the very least, face long lines of angry customers.

[*P64] The reality is that there is almost never an opportunity to “bargain “ over exculpatory clauses, as the majority describes it. Rarely do ordinary consumers in today’s fast-paced global economy have an “opportunity” to bargain over any of the terms of a contract (other than perhaps the price), as the majority describes “bargaining.” The only meaningful “bargaining” tool that an ordinary consumer possesses is his or her choice to frequent [**48] another business.

[*P65] While Richards has not been overruled and I am bound to accept the lack of the “opportunity to bargain” as a legitimate factor in the analysis of exculpatory agreements, the use of the “bargaining” factor in this case is particularly troublesome in light of the majority’s refusal to set forth a workable standard describing what would satisfy the “opportunity to bargain” requirement and its failure to decide whether a single objectionable factor is sufficient to render an exculpatory clause invalid. Majority op., P18 n. 7. Richards, which utilized the “bargaining” test, noted that no one factor alone was sufficient to invalidate an exculpatory agreement. Richards, 181 Wis. 2d at 1011. Yauger, which did not discuss the bargaining factor, came to the opposite conclusion and held the presence of one factor was sufficient to invalidate an exculpatory clause. Yauger, 206 Wis. 2d at 87 n.1.

[*P66] The majority fails to resolve this dispute and leaves open the possibility that even an exculpatory clause that is expertly drafted, conspicuous, and appears on a separate document may be invalidated merely because [**49] the signer had no “opportunity to bargain.” As such, the majority places the legitimacy of all exculpatory agreements in doubt. If this court wishes to invalidate all exculpatory clauses, then it should so hold, rather than burdening businesses with confusing requirements that are impossible or unlikely to be met in any case.

[*P67] Individuals have a right to know what the law is so that they may conduct their affairs in an orderly fashion. The majority has failed to articulate a clear, useable test that will provide meaningful guidance to those wishing to execute exculpatory agreements. Because the majority fails to articulate such a test, fails to apply the first two factors in accordance with the guidelines set forth in Yauger, and leaves open the possibility that the lack of an “opportunity to bargain” alone is sufficient to invalidate an exculpatory agreement, I respectfully dissent.

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.

LLICV095006358S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD

2012 Conn. Super. LEXIS 2684

November 1, 2012, Decided

November 2, 2012, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

CASE SUMMARY:

OVERVIEW: The camp directors’ summary judgment motion was denied in a wrongful death action arising out of the death of a camper. The camp directors claimed that they were not liable in their official capacities of the corporate owner of the camp. However, the real ground of liability alleged by the camper’s administrator was that as camp directors they breached their duties under Conn. Gen. Stat. §§ 19a-422(3) and 19a-428(a) and Conn. Agencies Regs. § 19-13-B27a to be responsible for the health, comfort and safety of the camper. Fact issues remained as to whether the camp directors breached that duty.

OUTCOME: Summary judgment motion denied.

CORE TERMS: summary judgment, youth, camper, counselors, mountain, bicycle, duty of care, breached, comfort, staff, personal liability, matter of law, genuine issue of material fact, times, owed, alter ego, incur, top, genuine issue, documentary, personnel, appliances, camping, safe, official position, tortious conduct, duty to warn, corporate veil, question of fact, independently

LexisNexis(R) Headnotes

Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks

[HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. Conn. Gen. Stat. § 19a-422(3) provides that there shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation. Conn. Gen. Stat. § 19a-428(a) provides that the Connecticut Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff.

Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks

[HN2] See Conn. Agencies Regs. § 19-13-B27a(n).

Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks

[HN3] See Conn. Agencies Regs. § 19-13-B27a(s).

Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks

[HN4] The statutory and regulatory scheme with respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.

Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks

[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the health, comfort and safety of campers.

Civil Procedure > Summary Judgment > Standards > General Overview

Civil Procedure > Summary Judgment > Standards > Appropriateness

[HN6] Conn. Gen. Prac. Book, R. Super. Ct. § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.

JUDGES: [*1] John W. Pickard, J.

OPINION BY: John W. Pickard

OPINION

MEMORANDUM OF DECISION

This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.

I. Personal Liability of David and Sharon Miskit

The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”

Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.’” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.

The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.

Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”

The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”

[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.

Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.

The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”

[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.¹ The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:

a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:

b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:

c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;

d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”

II. Open and Obvious

The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.

The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.

Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.

III. Conclusion

For the reasons given above, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard

Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

Kevin Okura, Plaintiff and Appellant, v. United States Cycling Federation et al., Defendants and Respondents

No. B021058

Court of Appeal of California, Second Appellate District, Division Five

186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

November 12, 1986

PRIOR HISTORY: [***1] Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. ^*

* Pursuant to California Constitution, article VI, section 21.

DISPOSITION: For the foregoing reasons, the judgment is affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant contestant sought review of the decision of the Superior Court of Los Angeles County (California), which granted summary judgment to respondent race sponsors in appellant’s action for damages from injuries suffered during a bicycle race.

OVERVIEW: Appellant contestant entered a bicycle race. The entry form included a clause exculpating respondent race sponsors from liability for injuries to contestants. Appellant was injured in the race and sought damages. The trial court granted summary judgment for respondents. On appeal, the court affirmed the trial court’s grant of summary judgment. The court held that a release of liability for bicycle racing was not invalid. The court held that bicycle racing was not a service of great importance to the public, that respondents did not have a decisive advantage of bargaining strength against potential contestants, and that appellant, rather than respondents, controlled his conduct of the race and the risks of injury involved in his participation. The court held that the release was not an invalid contract of adhesion.

OUTCOME: The court affirmed the trial court’s grant of summary judgment to respondent race sponsors in appellant contestant’s personal injury action. The release appellant signed before the race validly exculpated respondents from liability for appellant’s injuries.

CORE TERMS: release form, public interest, bicycle race, organizers, preincident, entities, carelessness, exculpation, bicycle, bicycle racing, adhesion, invalid, personal injuries, public importance, essential nature, bargaining strength, common carriers, exculpatory, purchaser, seller, escrow, promoters, legible, sponsors, great importance, standardized, sponsorship, bargaining, exemption, banking

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. ^*)

In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. ^*)

* Pursuant to California Constitution, article VI, section 21.

The Court of Appeal affirmed. The court held that the release was not one involving a transaction affecting the public interest, and was therefore not invalid under Civ. Code, § 1668, making contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object against the policy of the law. Further, there were no triable issues of fact regarding whether the release form was clear and legible or whether the release form released defendants from the type of risk which caused plaintiff’s injuries. (Opinion by Hastings (Gary), J., ⁺ with Feinerman, P. J., and Ashby, J., concurring.)

+ Assigned by the Chairperson of the Judicial Council.

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports, 3d Series

(1) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Releases. –Preincident releases that do not involve transactions affecting “the public interest” are not invalid under Civ. Code, § 1668, providing that contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object are against the policy of the law. The areas to consider to determine whether or not the public interest is affected are whether it concerns a business suitable for public regulation; whether the party seeking exculpation is performing a service of great importance to the public; whether the party holds himself out as willing to perform the service for any member of the public who seeks it, or at least for any member coming within certain established standards; whether, as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; whether, in exercising his superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and whether, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

(2) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Release–Participation in Organized Bicycle Race. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a release which plaintiff had signed prior to entering the race. The release was not invalid under Civ. Code, § 1668, providing that all contracts which have for their object the exemption of anyone for responsibility for his own wilful injury to the person or property of another are against the policy of the law, since the preincident release did not affect the public interest.

(3) Compromise, Settlement and Release § 8–Requisites and Validity–Clarity and Legibility of Release Form. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly granted summary judgment for defendants based on an otherwise valid preincident release which plaintiff had signed prior to entering the race, since no triable issues of fact existed regarding whether the release form was clear and legible. The release was not buried in a lengthy document or hidden among other verbiage. The type was clear and legible, and in light of the fact that the release had no other language to compete with, its size, three and one-half inches by eight inches, was appropriate.

(4) Compromise, Settlement and Release § 9–Construction, Operation and Effect–Release From Type of Risk Causing Injuries. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a preincident release which plaintiff had signed prior to entering the race, since the otherwise valid release form released defendants from the type of risk which caused plaintiff’s injuries. The language was clear and unambiguous and the entities released from liability that could have arisen out of negligence or carelessness on the part of the persons or entities mentioned in the release obviously included defendants, who were the promoters and sponsors of the event, and the city, which was an involved municipality.

COUNSEL: Edwin J. Wilson, Jr., and Jo Ann Iwasaki Parker for Plaintiff and Appellant.

Hagenbaugh & Murphy, Robert F. Donohue, Spray, Gould & Bowers, David T. Acalin, Cynthia Goodman and Robert Dean for Defendants and Respondents.

JUDGES: Opinion by Hastings (Gary), J., ⁺ with Feinerman, P. J., and Ashby, J., concurring.

+ Assigned by the Chairperson of the Judicial Council.

OPINION BY: HASTINGS

OPINION

[*1464] [**429] On August 4, 1984, appellant was injured while participating in a bicycle race known as the Hermosa Beach Grand Prix. The race was organized and staffed by members and volunteers of the South Bay Wheelmen, Inc., a nonprofit affiliate of the United States Cycling Federation. The United States Cycling Federation is a nonprofit organization of amateur competitive cyclists which sanctions bicycle races and provides clinics and training for members to prepare them for racing events. The race was run on closed portions of the public streets of Hermosa [***2] Beach. The city had issued a permit for the event.

Appellant has brought suit against the South Bay Wheelmen, United States Cycling Federation and the City of Hermosa Beach alleging negligence in the preparation and maintenance of the course. Plaintiff was racing in the second to last race of the day and apparently fell when his bicycle hit [*1465] loose debris as he was crossing railroad tracks on the course. He slid into a loose guardrail and was injured upon impact.

Summary judgment was granted to respondents herein based upon a release admittedly signed by appellant prior to entering the race. The release is contained on the entry form which is titled “Southern California Cycling Federation Standard Athelete’s Entry Blank and Release Form.” The language of the release contained immediately below the title is as follows: “In consideration of the acceptance of my application for entry in the above event, I hereby waive, release and discharge any and all claims for damages for death, personal injury or property damage which I may have, or which may hereafter accrue to me, as a result of [**430] my participation in said event. This release is intended [***3] to discharge in advance the promoters, sponsors, the U.S.C.F., the S.C.C.F., the promoting clubs, the officials, and any involved municipalities or other public entities (and their respective agents and employees), from and against any and all liability arising out of or connected in any way with my participation in said event, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above.

“I further understand that serious accidents occasionally occur during bicycle racing: and that participants in bicycle racing occasionally sustain mortal or serious personal injuries, and/or property damage, as a consequence thereof. Knowing the risks of bicycle racing, nevertheless, I hereby agree to assume those risks and to release and hold harmless all of the persons or entities mentioned above who (through negligence or carelessness) might otherwise be liable to me (or my heirs or assigns) for damages.

“It is further understood and agreed that this waiver, release and assumption of risk is to be binding on my heirs and assigns.

“I agree to accept and abide by the rules and regulations of the United States Cycling [***4] Federation.” (Italics added.) The only remaining terms on the form are for information regarding the entrant such as: signature, name, address, phone number, date, age and class entered. The whole form is only eight inches wide and three and one-half inches high. The language of the release portion quoted above takes up approximately 40 percent of the form.

The facts presented to the trial court regarding the release were uncontradicted. Appellant admitted signing the release but complained he had no choice and that he had no chance to inspect the course himself because the organizers prevented the participants from going onto the course except during the race. He argues that the release form is void as against public [*1466] policy because it is a contract of adhesion and that the form itself is not sufficient to put a participant on notice that he is actually signing a release.

(1) (2) Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] sets forth the basic law regarding the validity of preincident releases. First of all, the case recognizes that [HN1] not all releases of liability are invalid under Civil Code section [***5] 1668. Those releases that do not involve transactions affecting “the public interest” may stand. The case sets forth six areas to consider to determine whether or not the public interest is affected: “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus [HN2] the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of [***6] bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of [**431] the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Italics added, fns. omitted, 60 Cal.2d at pp. 98-101.) Bearing these in mind, we will analyze this case.

1. Public Regulation

The transaction in this case was entry into a public bicycle race organized by private nonprofit organizations. While bicycles generally are regulated to the extent they are subject to motor vehicle laws, the organized racing of bicycles is not the subject of public regulation. Neither the South Bay Wheelmen nor the United States Cycling Federation are subject to public regulation.

2. Is This a Service of Great Importance to the Public

The service provided here was the organization and running [***7] of competitive bicycle races for members of the organizers and the public. The race organizers [*1467] obtained the necessary permits; laid out the course; manned the course; obtained sponsors; and advertised the event. This is very similar to the organization and sponsorship of the numerous 10-kilometer and marathon running events that have blossomed since the mid to late 1970′s. However, herein, the races were divided into different classes. Appellant was riding in an “open” public event. Without such organization and sponsorship, those that desire to enter bicycle racing would undoubtedly have no chance to do so under organized settings. Therefore, there is no doubt but that respondents offer a public service. However, does it measure up to the public importance necessary to void the release.

In Tunkl v. Regents of University of California, supra, 60 Cal.2d 92, the question was whether or not a public hospital provided a service of great public importance. The question was answered in the affirmative. The question was also answered in the affirmative regarding escrow companies in Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [70 Cal.Rptr. [***8] 287]. In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], the Supreme Court held that hospitals, and the relationship between hospitals and physicians, were sufficiently important to prevent an exculpatory clause from applying to a doctor suing a hospital based upon hospital bylaws. In Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [152 Cal.Rptr. 850], the court found that the practice of night deposits was of great public importance regarding the banking industry and its customers so that an exculpatory clause in a night deposit agreement was unenforceable. Also, common carriers provide a sufficiently important public service that exculpatory agreements are void. ( Rest.2d Contracts, § 195, com. a, p. 66.)

Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and common carriers, this transaction is not one of great public importance. [HN3] There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared [***9] to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that “is often a matter of practical necessity for some members of the public.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 99.)

3. That the Service Is Open to Any Member of the Public.

It appears that anyone with a bicycle and the entrance fee who desires to enter the event can do so under standards established by the organizers.

[*1468] 4. The Economic Setting and “The Essential Nature of the Service.”

Item 4 seeks to measure the relative bargaining strengths of the parties. However, [**432] its prefaced by the words “the essential nature of the service.” (60 Cal.2d at pp. 99-100.) This ties in with item 2 above. The service provided herein can hardly be termed essential. It is a leisure time activity put on for people who desire to enter such an event. People are not compelled to enter the event [***10] but are merely invited to take part. If they desire to take part, they are required to sign the entry and release form. The relative bargaining strengths of the parties does not come into play absent a compelling public interest in the transaction.

5. Superior Bargaining Power and Standardized Adhesion Contract.

As set forth in item 4, this is not a compelled, essential service. The transaction raises a voluntary relationship between the parties. The promoters and organizers volunteer to hold a race if the entrants volunteer to take part for a nominal fee and signature on the entry and release form. These are not the conditions from which contracts of adhesion arise. Therefore, this item is not applicable.

6. The Provision of Control.

Compared to the patient who has placed himself in the exclusive control of the hospital in Tunkl, or the passenger who sits on a public conveyance, no such release of control exists here. Appellant retained complete control of himself and his bicycle and at any time could have dropped out of the race. Respondents had no control over how appellant rode his bicycle or approached the area in question except as to the general [***11] layout of the course.

Except for item 3, appellant’s situation does not fall within the guidelines set out in Tunkl. (60 Cal.2d at p. 92.) This situation does not present a transaction affecting the public interest. Therefore, there is no proscription for the release contained in the entry and release form herein. The trial court correctly relied upon the case of McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 [216 Cal.Rptr. 465].

(3) (4) Finally, no triable issues of fact exist regarding whether the release form is clear and legible or whether the release form released respondents from the type of risk which caused appellant’s injuries. As previously indicated, the entire form is only three and one-half inches by eight inches and the only printing on the form other than the incidental information relating to the competitor is the release language. It is not buried in a lengthy document or hidden among other verbiage. The type is clear [*1469] and legible and in light of the fact it has no other language to compete with, its size is appropriate. The language is clear and unambiguous and the first paragraph concludes with “even though that liability [***12] may arise out of negligence or carelessness on the part of the persons or entities mentioned above.” The entities mentioned obviously include the South Bay Wheelmen who were the “promoters and sponsors” of the event, the United States Cycling Federation and the City of Hermosa Beach, “any involved municipalities.”

For the foregoing reasons, the judgment is affirmed.

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Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)

[*1] Lisa Nutley, Plaintiff-Respondent, v SkyDive the Ranch, Defendant-Appellant.

862, 108665/06

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999

August 11, 2009, Decided

August 11, 2009, Entered

PRIOR HISTORY: Nutley v. Skydive The Ranch, 22 Misc. 3d 1122A, 881 N.Y.S.2d 365, 2009 N.Y. Misc. LEXIS 274 (2009)

CORE TERMS: counterclaim, summary judgment, sport, attorney’s fees, enter judgment, recreational activity, parachute, default

COUNSEL: [***1] The Law Offices of David M. Schreier, New York (Steven E. Kurtz of counsel), for appellant.

McMahon, Martine & Gallagher, LLP Brooklyn (Patrick W. Brody of counsel), for respondent.

JUDGES: Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.

OPINION

[**530] Order, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2009, which denied defendant’s motion for summary judgment dismissing the complaint and for a default judgment on its counterclaim for attorney’s fees and [**531] costs, unanimously modified, on the law, the motion granted to the extent of awarding defendant summary judgment, the complaint dismissed, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Plaintiff is directed to respond to defendant’s counterclaims within 60 days of the date of this order.

Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk. Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation (see e.g. Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Here, the risk [***2] of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport (id. at 485).

So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact (see Caruso v Allnet Communication Servs., 242 AD2d 484, 485, 662 N.Y.S.2d 468 [1997]). As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts (cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297, 177 N.E.2d 925, 220 N.Y.S.2d 962 [1961] [exculpatory clause not barred by "overriding public interest"]), the parties have not briefed the issue, and we do not reach it (see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939, 663 N.E.2d 1251, 641 N.Y.S.2d 221 [1996]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 176, 710 N.Y.S.2d 54 [2000]). [***3] Defendant’s motion to enter judgment by default (CPLR 3215[c]) was appropriately denied in the exercise of discretion (cf. Charles F. Winsom Gems v D. Gumbiner, Inc., 85 A.D.2d 69, 71, 448 N.Y.S.2d 471 [1982], [*2] affd 57 NY2d 813, 441 N.E.2d 1118, 455 N.Y.S.2d 600 [1982]), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant’s counterclaims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 11, 2009

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Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)

KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.

No. 12-1199

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

715 F.3d 867; 2013 U.S. App. LEXIS 9249

May 7, 2013, Filed

PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff child filed suit against defendant education center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The U.S. District Court for the District of Colorado granted the center’s motion for summary judgment and the child appealed.

OVERVIEW: The district court concluded, in part, that the child’s mother validly released any claim for negligence against the center by signing an acknowledgment of risk and release of liability. The child argued summary judgment was inappropriate because the release was unenforceable for three reasons: the release was an invalid exculpatory agreement; the mother’s decision to sign the release was not voluntary and informed, as required by Colo. Rev. Stat. § 13-22-107; and to the extent the release was otherwise enforceable, it was nevertheless voidable because it was procured through fraud. Colorado law did not require that exculpatory agreements refer to the specific activity in which the child participated and was injured. The mother’s decision to release the child’s prospective negligence claims against the center was informed. The mother had sufficient information from which to evaluate the degree of risk the child faced. Because the child failed to provide any evidence that the mother relied on a material misrepresentation made by the center in a letter, the child failed to establish the mother was fraudulently induced to sign the release.

OUTCOME: Summary judgment to the center on the child’s negligence claim was affirmed.

CORE TERMS: negligence claim, ski, exculpatory, skiing, daughter, summary judgment, accredited, adaptive, misrepresentation, outdoor, riding, instructor, trip, sufficient information, unambiguously, enforceable, disability, bi-ski, assess, manner consistent, risks associated, specific activity, fraudulent misrepresentation, quotation, ambiguity, horseback, guardian, falling, horse, causes of action

LexisNexis® Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
Civil Procedure > Summary Judgment > Standards > General Overview

^HN1
An appellate court reviews a district court’s decision to grant summary judgment de novo, applying the same standard as a district court. Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Torts > Negligence > Defenses > Exculpatory Clauses > General Overview

^HN2
In Colorado, agreements attempting to exculpate a party from that party’s own negligence have long been disfavored. However, exculpatory agreements are not necessarily void. In determining whether an exculpatory agreement is valid, Colorado courts consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Under the fourth factor, use of the specific terms negligence and breach of warranty are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty. Rather, the inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed. In making this determination, Colorado courts examine the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Torts > Negligence > Defenses > Exculpatory Clauses > General Overview

^HN3
Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. Nor does it require that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.

Civil Procedure > Appeals > General Overview

^HN4
A party may not lose in a district court on one theory of the case, and then prevail on appeal on a different theory.

Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation

^HN5
A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Colo. Rev. Stat. § 13-22-107(3). The statute declares that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education. Colo. Rev. Stat. § 13-22-107(1)(a)(V). In addition to the Jones factors, the General Assembly requires that the consent to waiver by a parent be voluntary and informed. A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.

Torts > Negligence > Defenses > Exculpatory Clauses > General Overview

^HN6
A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.

Torts > Negligence > Defenses > Exculpatory Clauses > General Overview

^HN7
To give effect to the General Assembly’s intent in enacting Colo. Rev. Stat. § 13-22-107–that a parent’s decision to release his or her child’s prospective negligence claims be honored so long as the decision is voluntary and informed, Colo. Rev. Stat. § 13-22-107(1)(a)(V)–courts must be able to consider the relevant information the parent had and was provided in order to make that decision.

Contracts Law > Contract Conditions & Provisions > Waivers > General Overview
Contracts Law > Contract Interpretation > General Overview
Contracts Law > Defenses > Fraud & Misrepresentation > General Overview
Torts > Negligence > Defenses > Exculpatory Clauses > General Overview

^HN8
A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside. To establish fraud, a plaintiff must prove (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages. Furthermore, the misrepresentation must be made with the intent to deceive.

COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION

[*869] McKAY, Circuit Judge.

Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.

Background

In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.

Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).¹ The Letter states, in pertinent part:

LETTER TO STUDENTS, PARENTS AND GUARDIANS

Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.

The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.

. . . .

All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.

If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.

(App. at 209.)

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The accompanying Release provides:

ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)

In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:

1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.

2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.

I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.

(App. at 210.)

Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.

Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.

Discussion

^HN1“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Colorado law applies in this diversity case.

I. Enforceability of the Release

Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.

A. Validity Under Jones

^HN2In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.

Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts examine “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).

Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.

Contrary to Plaintiff’s argument, ^HN3Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant's] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)

Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (^HN4“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.

Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.

B. Informed Decision Under Colorado Revised Statute Section 13-22-107

We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.

In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,^HN5 “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).

The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.’” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.

Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).

The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:

I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.

Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.

Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, ^HN6“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.

The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.

Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.

[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. ^HN7To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.

Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.

Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.

We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.

II. Fraudulent Inducement

Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.^{2 HN8}“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove

(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.

Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.

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Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant's] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.

Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.³ Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -

3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).

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Conclusion

For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.

WordPress Tags: Squires,Breckenridge,Outdoor,Education,Center,LEXIS,Dist,Plaintiff,Appellant,Defendant,Appellee,STATES,COURT,APPEALS,TENTH,CIRCUIT,PRIOR,HISTORY,APPEAL,FROM,DISTRICT,COLORADO,Goodwin,Supp,Colo,CASE,SUMMARY,PROCEDURAL,POSTURE,negligence,accident,judgment,OVERVIEW,agreement,decision,Stat,extent,fraud,agreements,information,degree,misrepresentation,letter,OUTCOME,TERMS,daughter,instructor,manner,quotation,guardian,horse,action,LexisNexis,Headnotes,Civil,Procedure,Appellate,Review,Standards,General,fact,Torts,Defenses,Exculpatory,Clauses,factors,existence,intention,Under,fourth,factor,Rather,determination,jargon,length,complication,failure,theory,Interpretation,statute,parents,decisions,treatment,addition,Jones,waiver,injury,Contracts,Contract,Conditions,Provisions,Waivers,construction,representation,reliance,COUNSEL,Michael,Sink,Perkins,Coie,Denver,Robert,Miller,Stephanie,Dunn,Gregory,Gold,Firm,Greenwood,Village,Thomas,Metier,Fort,Collins,David,Werber,John,Grund,Deana,Dagner,Joan,Allgaier,JUDGES,HARTZ,McKAY,BRIEN,OPINION,Judge,magistrate,Sara,Release,Section,Background,Resort,Camp,Fire,disabilities,opportunities,growth,participants,Students,Guardians,Acknowledg,Risk,Greetings,BOEC,member,adventure,abilities,individuals,goals,Association,Experiential,policies,components,applicant,lesson,environment,participation,student,signature,suggestions,feedback,Footnotes,argument,Oral,Some,director,attachment,ACKNOWLEDGMENT,events,Understand,precautions,supervision,instruction,equipment,Also,instructors,guidelines,procedures,exposure,insect,immersion,incident,accidents,illnesses,areas,facilities,Further,Agree,Assume,death,successors,employees,conjunction,January,Once,collision,trees,tree,injuries,jury,Discussion,Lundstrom,Romero,Dressel,Heil,Valley,Ranch,Simkin,conclusion,Chadwick,Colt,Ross,Outfitters,paragraphs,emphasis,Mincin,Vail,Holdings,alteration,descriptions,sufficiency,description,Contrary,Forman,Brown,defendants,Brooks,Timberline,Tours,Lahey,Covington,Twin,Lakes,Expeditions,citation,Lyons,Jefferson,Bank,Trust,logic,allocations,participant,provision,Supreme,policy,Cooper,Aspen,enactment,Wycoff,Grace,Church,Assemblies,Hamill,Cheley,Camps,requirement,FDIC,Schuchmann,registration,event,Winterama,paragraph,permission,correction,Although,tube,horses,campers,mechanics,knowledge,Christopher,Reeve,scenarios,scope,purposes,statement,evaluation,connection,Carlson,Ferris,odds,Providers,Squire,Down,Adaptive,Method,Fraudulent,Inducement,Chase,Chem,Barfield,Hall,Club,Valencia,Homeowners,Assocs,response,instance,misrepresentations,statements,hinges,testimony,consequences,Shoels,Klebold,basis,Appellants,acceptance,limitations,relief,AFFIRM,unenforceable,three,enforceable,voidable,horseback,novo,movant,whether,four,signor,behalf,five,capitalization,hereby,skier,innertube

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Derek A. Lautieri v. Jorun G. Bae ¹

1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).

01-4078

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

October 29, 2003, Decided

October 29, 2003, Filed

DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.

JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.

OPINION BY: Kenneth J. Fishman

OPINION

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) ² and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. ³ Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.

2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.

3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.

BACKGROUND

On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.

On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:

I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.

(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .

Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:

In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.

[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.

DISCUSSION

[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). ⁴ Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.

4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).

[*9] A. William Fiske d/b/a/ Fiske Independent Race Management

Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.

[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]

Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.

Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. ⁵ Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.

5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).

[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.

The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.

Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.

[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). ⁶ As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant's] negligence in this matter [amounted] to gross negligence”).

6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.

[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party's] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).

Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.

B. USAT

USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.

USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.

[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.

C. Boys and Girls Clubs of Metrowest, Inc.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.

ORDER

For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.

Kenneth J. Fishman

Justice of the Superior Court

Date: October 29, 2003

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